Posted: 10 Jan 2017 Last revised: 11 Oct 2017
Date Written: January 9, 2017
In this paper, we engage Cheryl Harris’ investigation of “how rights in property are contingent on, intertwined with, and conflated with race” by considering the racial investments in copyright. We examine the narratives that animate some of copyright’s central concepts including “originality” and “transformativeness.” We are particularly interested in reading cases that define and articulate originality and transformativeness through the lens of critical race theory. In identifying the ideologically raced nature of these concepts we focus on four arguments:
(1) the tendency to implicitly draw upon Lockean labor theory and its narrow Western European understandings of economic productivity,
(2) the legal standard’s overly narrow and culturally specific definition of “originality,”
(3) the skepticism and, occasionally overtly antagonistic approach of copyright jurisprudence toward black creative production, and
(4) the use of tests of artistic merit as justifications for judging individual “worthiness” in racialized ways.
We consider the history of de jure and de facto exclusion of black people from, in particular, the world of literature as the status quo against which copyright law developed in the United States and how that status quo has afforded the rights to economically benefit from creative works in exclusionary ways. This project picks up where John Tehranian’s Toward a Critical IP Theory leaves off and expands the fine work done by KJ Greene and others in the space of black musical production into the literary arts.
Keywords: copyright, race, intellectual property
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