AALS Section on Art Law, part four

2006 AALS Meeting, Jan. 6, Section on Art Law
Art Law and Intellectual Property Law: Convergence and Conflict

K.J. Greene of Thomas Jefferson spoke about piracy, black appropriation, and copynorms. This is a series of thoughts, he said, that he is working through, so the connections between them may not yet be fully formed. He argued that considering the impact of intellectual property on black cultural productions and the treatment of black artists could offer opportunities to strengthen artists’ rights, improve antipiracy norms, and provide some atonement for what has been taken from black artists over the years.

He began by saying that the copyright system doesn’t address modes of black cultural production, for example by requiring fixation when black music is often improvisational. In addition (and perhaps at the other extreme), copyright’s low standard of originality, allowing minor variations to be copyrighted but affording no protection to ideas, means that black innovators end up contributing the “idea” that gets appropriated and commercialized by white artists. Formalities historically also posed problems for artists who didn’t know what they needed to do to retain rights. Thus, black artists have had value expropriated in a variety of ways, from the blues to now. Copyright today still hurts black artists – Public Enemy’s “wall of samples” effect can’t be repeated today because labels require clearance of all samples, which is impossible/prohibitively expensive to get.

As Larry Lessig has pointed out, the history of the copyright industries is that they use others’ creations without payment to jump-start the market; this is particularly true with black artists. If we consider compulsory licensing as a response to current problems, why not consider atonement? In reparations discussions generally, opponents often protest that it’s hard to identify who got screwed; that’s less true when we can point to artists who died or are struggling in poverty (one of Greene’s examples was Jelly Roll Morton).

As one measure of the importance of black artists to copyright, Greene noted how many big IP cases involve black artists. The leading case on fair use, Campbell, had black defendants; Murray v. Nat'l Broadcasting Co. Inc., 844 F.2d 988 (2d Cir.1988), the leading case on protection of ideas in New York is about the idea behind the Cosby Show; etc. I’d be very interested to hear him say more about cases in which both plaintiffs and defendants are black – including many of the sampling cases, Murray, and the Ringgold case on de minimis use.

One notable feature of this history, Greene said, is how many black artists have continued to create without being paid (though the relative return of art versus other occupations open to the artists might also have something to do with this).

Greene also argued that we should judge an IP regime by how it treats people at the bottom – I found this claim to be a provocative application of Rawlsian-type reasoning, and would love to see more discussion of it.

How does this link up to file-sharing? Both the RIAA and black artists face a situation of mass appropriation, though the RIAA is in this position because of technology, not legal regimes or discrimination. The RIAA confronts a culture of lawlessness: People think it is okay to download. The film and music industries are heavily implicated in the history of discrimination, and people who download often know this (though I'm not sure how many of them, especially the white ones, think they're striking some sort of reparative blow -- couldn't whites downloading black music be just another link in the chain of uncompensated appropriation?). Perhaps some moves towards atonement would help rehabilitate the content industries and help anticopying norms. Sometimes labels have offered token payments to expropriated artists, but Greene believes that more could be done.