What about the notion of “creativity,” if anything, is racialized? If so, how does such racialization manifest, especially in creative arts? This plenary session identifies creativity as a racially specific notion, one which, like other concepts in IP, requires scrutiny through the lens of critical race theory, engaging with the idea that the creative arts are animated by often invisible racially specific ideologies. Scholars working on issues in music, fashion, and dance reimagine both creativity and the creative arts.
Straight Outta Lawsuits: Hip Hop Music and Copyright Law As the Once and Future Bane of African-American Cultural Production
African-American innovation in popular music is surpassed by none. Musical giants such as Scott Joplin, Louis Armstrong, Bessie Smith, Jelly Roll Morton, Chuck Berry, Jimi Hendrix, James Brown, and George Clinton created the music—ragtime, blues, jazz, rock, soul and funk– that dominates and defines American popular music. Their creations immeasurably influenced and enriched American culture—and the economy. However, because of copyright law and doctrine, and its interface with contract law, compensation and credit too often eluded the very artists and performers who actually created it. Copyright law has failed to protect both creative economic rights as well as moral rights in artistic creation. Indeed, the treatment of Black artists as a case in point is nothing less than a “copyright scandal.”
Hip hop music today dominates the American—and international– music space, producing billions in value. Like the blues and other African-American art forms that birthed it, hip-hop music has been burdened by copyright law in ways that disadvantaged its creators. Hip hop originated in the inner-city of the American black community, and has from the outset presented a host of challenges to copyright law, including the contours of fair use, the scope of the de minimis doctrine, and the proper standard for determining infringement of digital sound sampling. Copyright law, in turn, has postulated doctrines and formalities hostile to the creation and protection of hip-hop music.
The structure of copyright law is often fundamentally incompatible with traditional African-American modes of music production. Historically, this incompatibility led to the wrongful expansion of the public domain at the expense of innovative black artists. Combined with rigid copyright formalities, a neo-classical system of contract law that fostered discrimination and bargaining disparities, and a social structure rooted in black inferiority, the twentieth century witnessed appropriation of black musical art forms on a mass scale.
The treatment of black artists and performers points to how copyright law might be reformed from the vantage of an artist-centered IP regime. The efficacy of copyright law can be evaluated by how well (or poorly) copyright law treats creators at the bottom of society, rather than the earnings statements of a few entertainment conglomerates. If the purpose of copyright law is to encourage the production of creative work, copyright reforms should on empowering the creators, and not only corporations.
Race, Choreographic Copyright, and Intellectual Property in the Body
This paper considers how a focus on dance can deepen understandings of how intellectual property participates in the formation and negotiation of racial hierarchies. Drawing on my recent book Choreographing Copyright: Race, Gender, and Intellectual Property Rights in American Dance, which itself is heavily indebted to Cheryl Harris’s groundbreaking 1993 article “Whiteness as Property,” I examine what the history of intellectual property rights in dance reveals about the ways copyright has been used to consolidate and to contest racial (and gendered and classed) power. U.S. dancers from a range of backgrounds, I show, have sought the protection of intellectual property rights, sometimes as a means of shoring up white privilege, and sometimes as a means of resisting white hegemony. I then ask what case studies of choreographic copyright can illuminate about the complications of claiming intellectual property in the body. Because dance-makers’ bodies are not wholly extractable from the choreographic work that is rendered property under copyright law, dance is well positioned to illuminate the contradictions within claims of “self-possession.” Bearing in mind that one of the chief ideological rationales for copyright is a Lockean notion of property in one’s person – itself a key locus of racialization and white supremacy – the instabilities of choreographic copyright might productively be seen as a magnification of problems inherent to all forms of copyright.
Trial by Social Media: Thai Instagrammers and the Baggage of Cultural Appropriation
Fashion design is unlike many other creative works in that it is not copyrightable. Nonetheless, the fashion industry, the public, and the media have long constructed a sense of ethics and legality about fashion copying that have been reproduced and shared through a wide range of communicative forms and practices (e.g., industry-led media campaigns, mainstream news coverage, and offline and social media interactions). The constructed sense of legality about what constitutes fashion creativity and fashion copying as well as which bodies are imagined to belong to these categories have generally aligned with and helped to secure dominant economic and social relations and logics of white capitalist hierarchies nationally and globally. As such, the public and institutional discourses and policies about fashion copying—including the very idea of what counts as fashion copying—are complicit and collude with colonialist projects.
In March 2016, the colonial racial construction of fashion legality was exposed in a highly publicized trial by social media initiated by Thai Instagrammers. It all began after Balenciaga’s new creative director Demna Gvasalia presented his debut collection at Paris Fashion Week, which included tote bags that were near exact replicas of Thai sampeng bags. Thai social media users did not just point out Gvasalia’s copying, they used Instagram to playfully but pointedly affect a reclamation that rarely happens in fashion. Through a close examination of their Instagram posts and Instagramming practices, I will demonstrate how their Instagramming recaptures what is often taken in western fashion’s appropriation of non-white people’s cultural objects—the power to self-define the meanings, context, and value of these objects. Fundamentally, their trial by social media affects a deeding back of not only things but, more crucially, the cultural meanings and the social life of these things.