Intellectual Property at the Intersection of Race and Gender: Lady Sings the Blues
22 Pages Posted: 27 Apr 2010
Date Written: April 27, 2010
The history of the production of cultural property in the United States follows the same pattern as the history of the racial divide that inaugurated the founding of the Republic. The original U.S. Constitution excluded both black women and men from the blessings of liberty. Meanwhile, that same Constitution granted rights to authors and inventors in the Patent/Copyright Clause, which laid the foundation for intellectual property (IP) rights that have become an economic juggernaut not only in the United States, but globally. IP rights are inextricably tied to cultural and scientific production, which influences all aspects of society. Thus, before the passage of the major civil rights amendments and acts, IP rights were unavailable to protect the cultural rights of early black Americans. Congress enacted laws mandating racial equality, and effectively protecting the IP rights of blacks in the arts and sciences, only within the past few decades.
This article explores how women artists, particularly black women, have been impacted by the IP system, and compares how both blacks and women have a shared commonality of treatment with indigenous peoples and their creative works. Traditionally, IP scholarship and jurisprudence has not focused on race and gender inequality. However, these issues are receiving renewed attention in feminist scholarship and in critiques of existing power structures by those concerned with the treatment of people of color, women, and indigenous peoples in the international arena. The treatment of blacks, women, and indigenous peoples in the IP system reflects the unfortunate narrative of exploitation, devaluation, and promotion of derogatory stereotypes that helped fuel oppression in the United States, and in the case of indigenous peoples, both here and abroad. The treatment of women blues artists in the IP system illustrates the racial and gendered nature of IP rights, and that IP has been central to racial subordination from both an economic and cultural standpoint.
Part I of this article discusses the tenets of critical race theory to show that it can be useful in explaining how IP law has disadvantaged African-American artists and fostered their subordination. Part II explores how feminist critiques of IP benefit from examining the treatment of black women, using blues women of the 1920s as a focal point. Part III examines how the treatment of indigenous peoples parallels IP deprivations of blacks and women.
Keywords: intellectual property, patents, copyright, racial subordination, racial discrimination, gender subordination, indigenous peoples, Blues artists, critical race theory, critical gender theory, cultural property
JEL Classification: K10, K39
Suggested Citation: Suggested Citation