David Newhoff is an author and copyright advocate. He writes the blog The Illusion of More, and his book Who Invented Oscar Wilde: The Photograph at the Center of Modern American Copyright was published by Potomac Books in November 2020.

Is Copyright Good for Black Artists?

There is no arguing the fact that despite all the aspiration in the words of America’s founding, those principles were set down by and for white, male property owners. As such, any modern analyses of constitutional principles that fails to consider whether they have extended beyond their original exclusivity would be poor scholarship at the very least. Meanwhile, in regard to this article, I am mindful of the axiom a friend of mine—a Black poet and playwright—recently repeated:  that Black Americans really do not want white Americans telling them what they are supposed to want.

I certainly cannot presume to know what American Black authors of creative works want that may be any different from what nearly all authors of works want, which I believe to be agency above all else. And if I can presume to summarize, the anthology of Black American authorship is one in which the demand for agency is the most prominent recurring theme. From Baldwin to Spike to NWA to Amanda Gorman, the same story is expressed a thousand different ways—that the promise of America did not initially mean, and has yet to fully affirm, that all are created equal. But specifically, on the subject of American copyright law, I asserted the following in the book I published in November 2020:

Without necessarily meaning to do so, the Framers anticipated both the commercial value and the political power of creative expression that was latent among the entire population, including those who were officially disenfranchised from the opportunities and liberties articulated by the great experiment. Madison and his contemporaries could not have imagined, for instance, that in 1845, a man who had been born into slavery would—while still a fugitive—register as his property a literary work entitled Narrative of the Life of Frederick Douglass, an American Slave in a Massachusetts District Court. That this book is itself a story of deliverance and empowerment through literary achievement epitomizes the latent power of the constitutional foundation of copyright.

Copyright is often maligned as a tool of grasping corporatists, and this view is occasionally argued to be coextensive to a broader narrative of racial discrimination in virtually every aspect of American society and commerce. But this misunderstands the function and the nature of copyright. Although nobody can doubt that where predatory actors have robbed creative people of their agency, Black artists have likely been the prey more often than white artists. But unscrupulous practice is not a function, or even a failing, of copyright itself. All copyright law does, at the most basic level, is vest the author with the exclusive right to exploit her creative works. And even that exclusivity has limits.

But like other forms of property, intellectual property rights are transferrable in part or in whole. Consequently, the author who creates a potentially valuable work is often at the mercy of circumstance when the contracts are written. Thus, the many reasons why, for instance, the rap artist from the projects is at a disadvantage to the white musician from the suburbs comprise a narrative of disparity we know all too well. But the story of those inequities no more recommends depriving the Black artist of his copyrights any more than stories about predatory mortgage practices imply that home ownership is of no interest to Black families.

Still, there can be subtle ways in which copyright needs rethinking with respect to race and principles of equitable justice. For example, most copyright advocates and songwriters criticized the outcome in the 2016 “Blurred Lines” lawsuit, in which the Estate of Marvin Gaye sued Pharrell Williams and Robin Thicke for infringement of Gaye’s song “Got to Give It Up.” But three legal scholars writing for the Institute for Intellectual Property and Social Justice filed an amicus brief in that case, concurring with the final result, but dissenting in part because the plaintiff’s song was not allowed into evidence as a sound recording.

The brief cites a confluence of case law and inscrutable Copyright Office practice whereby sound recordings were not accepted as deposit copies between the 1930s and the 1980s, when most works were published under the provisions of the 1909 law. And although racism was almost certainly not a factor in those circumstances—indeed the brief alleges no such thing—the controlling doctrines in Blurred Lines just happen to disfavor artists of color, who produced thousands of works during that period. In fact, the 1950s through the 1980s is exactly when Black artists creating Black music were, finally, more widely adopted by the American market.

Neither Marvin Gaye, nor hundreds of other musical artists of color, were formally trained in European staff notation—i.e. written composition. These artists essentially composed in the recording studio, which is how many music makers work today. Thus, the IPSJ brief argued that only the sound recordings in those examples embody the protectable aspects of hundreds of songs made over roughly a half century. And because a substantial number of those recordings were made by artists of color, the legal limitations in the “Blurred Lines” case were unintentionally racially biased, according to the brief.

That story is technical and nuanced, which is why it’s the stuff of academic study and amicus briefs rather than dinner conversation. But it is a good example of the type of inquiry into copyright law that rightly asks the same question posed by so many Black creative authors themselves:  how and when will equality be achieved? Where prejudice may exist in the application of copyright, there is absolutely reason to kick the proverbial tires; but the underlying purpose of copyright—to secure the agency of the author—cannot possibly be anathema to the interests of Black creators working in every aspect of the arts.

On a related topic, it is not mere coincidence that Smokey Robinson was among the most prominent musical artists to advocate passage of the CLASSICS Act in 2018. That legislation partially corrected another aberration of copyright law by enabling the creators of sound recordings made prior to 1972 to now participate in royalties generated by the digital streaming market. Once again, hundreds of the most popular songs encompassed by that bill were made by artists of color, including many studio musicians who are not household names. Nevertheless, copyright critics in the privileged aeries of academia and tech-funded organizations called CLASSICS a “bad law.”

Certainly, nobody knows the hypocrisies of America’s aspirational rhetoric better than Black Americans. But perhaps this one reason why Black artists are so often the most poignant and provocative voices to reiterate those dreams through creative expression. And, yes, on balance, I assume that possessing the agency to decide how those works may be exploited is an essential aspect of those dreams.