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The law assumed the crucial task of racial classification, and accepted and embraced the then-current theories of race as biological fact. This core precept of race as a physically defined reality allowed the law to fulfill an essential function - to "parcel out social standing according to race" and to facilitate systematic discrimination by articulating "seemingly precise definitions of racial group membership.' 3 1 This allocation of race and rights continued a century after the abolition of slavery. The law relied on bounded, objective, and scientific definitions of race - what Neil Gotanda has called "historical race" 133 - to construct whiteness as not merely race, but race plus privilege. By making race determinant and the product of rationality and science, dominant and subordinate positions within the racial hierarchy were disguised as the product of natural law and biology 134 rather than as naked preferences.' 35 Whiteness as racialized privilege was then legitimated by science and was embraced in legal doctrine as "objective fact." Case law that attempted to define race frequently struggled over the precise fractional amount of Black "blood" - traceable Black ancestry - that would defeat a claim to whiteness. 136 Although the courts applied varying fractional formulas in different jurisdictions to define "Black" or, in the terms of the day, "Negro" or "colored," the law uniformly accepted the rule of hypodescent 137 - racial identity was governed by blood, and white was preferred.138

As evidenced by its elaborate framework for combatting infringement and vast and growing global anti-piracy network, the US will stop at nothing to protect the fruits of its intellectual labors, jealously guarding its “precious commodities” throughout the world in a manner paralleling the way colonizers protected their colonial empires. In Mukasey’s narrative, in a move reminiscent of that used to build the Coalition of the Willing in the War on Terror, those American allies who refuse to police intellectual property crimes are implied to be enemies—those who are not with the US are presumed to be against it. Dichotomous thinking prevails in Mukasey’s description of the enforcement of the legal regimes intended to protect authors and inventors of intellectual properties. Those who participate in and enforce US trademark, patent, and copyright law, including the creators of new works who avail themselves of intellectual property protections, are lauded for upholding American traditions of creativity, innovation, hard work, and helping to “ensure strong enforcement worldwide.”11 Moreover, they are applauded for their contributions to global economic growth and development and ensuring that US intellectual property law’s neoliberal order, extends far beyond the nation’s borders.12 Less clear from Mukasey’s speech is the question of who poses a threat to American intellectual property hegemony. The perpetrators of intellectual property rights violations, however, are revealed in other texts, such as a 2011 report by the National Intellectual Property Rights Coordination Center (NIPRCC) entitled Intellectual Property Rights Violations: A Report on Threats to United States Interests at Home and Abroad (Report on Threats). The NIPRCC is a US government agency tasked with addressing intellectual property rights violations, thus protecting “the public’s health and safety, the US economy and the war fighters.”13 The mission statement of the organization, echoing Mukasey’s speech, proclaims: Intellectual property rights theft is not a victimless crime. It threatens U.S. businesses and robs hard-working Americans of their jobs, which negatively impacts the economy. It can also pose serious health and safety risks to consumers, and oftentimes, it fuels global organized crime. 14 The NIPRCC’s “About Us Partners” page identifies objectives including the need to identify, disrupt, prosecute, and dismantle “criminal organizations involved in the manufacture and distribution of counterfeit products,” “keep counterfeit and pirated goods out of US supply chains, markets, and streets,” and address “threats to border security, national security, and US economic stability” arising from intellectual property rights violations.15 Through the Report on Threats, it becomes clear that the targets of these objectives are most often located in the developing world, not among white Westerners. China, India, South America are cited as “The Source of the Threat” from trademark, copyright, and patent infringement. China engages in industrial espionage, undermining US corporations, India’s fake pharmaceuticals threaten to make Americans deathly ill, and South America funds dangerous terrorist groups. Unlike its non-white counterparts Russia, who sells its infringing goods domestically, is posited as a rather innocuous economic competitor, distinguishing it from those who selfishly fuel their own technological development at the expense of Western nations and use their illegal activities to create dangerous threats of bodily harm.16 Moreover, while “[o]ffenders in many countries pose a threat, but China-based offenders are the dominant threat and dwarf all other international threats.”17 A focus on racial Others more clearly emerges in the sections on “Criminal Enterprises” and “Organized Crime.” The Chinese MA Ke Pei and unnamed “Middle Eastern criminal enterprises” are named as threats to Americans. Similarly, organized intellectual property crime also largely originates outside the West, from the Chinese Yi Ging Organization, Lim Organization, Big Circle Boys, 14K, Sun Yee On triads and Mexican Los Zetas. The NIPRCC specifically dismisses threats originating with the Italian Camorra and the Russian Mafia, noting that they are not threats in the United States.18 While the Report on Threats asserts that “[t]here is little support for the claims that criminal enterprises and organized crime groups use profits from IPR violations to fund Other criminal activities,” it notes that “[t]errorist supporters have used intellectual property crime as one method to raise funds.”19 The Report on Threats naturalizes the link between intellectual property infringement and terrorism, arguing that the sale of counterfeit merchandise in South America, the Philippines, India, and Pakistan helped to fund Hizballah, al-Qaeda, LeT, and D-Company.20 Through the discourses promulgated by the US government in texts such as Mukasey’s speech and he Report on Threats, the racialization of intellectual property rights violations is magnified through their association with piracy, theft, and terrorism, acts already often deeply intertwined with race in the American imaginary. Piracy, in a different but unavoidably associated sense, is often linked to blackness, particularly in recent years with coverage of Somalia and its links to fundamentalist Muslim terrorism.21 Theft, particularly in the United States, has historically been linked to blackness, through racialized stereotypes about criminality.22 Terrorism, of course, is racially and ethnically charged as well, freshly so after the Boston Marathon Bombings. Moreover, developing nations are disproportionately identified as extreme threats to the United States, more so than Western ones whose intellectual property rights violations are minimized through their tendency to involve direct consumption of infringing goods as opposed to facilitating crimes and bodily harm. Significantly, the identification of the need to protect against intellectual property threats originating in the developing world does not only represent a conservative Republican agenda or corporate interests. The Obama Administration continues the Bush Administration’s policy of promising to protect intellectual property, the nation’s “single greatest asset”23 from Asian infringers—particularly China and India—and preaches the role of trademarks, copyrights, and patents in reviving the once great American economy. According to President Obama, strict enforcement of intellectual property rights is necessary to ensure that “our companies know that someone else can’t just steal that idea and duplicate it with cheaper inputs and labor.”24 The “someone” implicated by “cheaper inputs and labor” suggests the developing world, a place where low overhead and low wages facilitate easy duplication of ideas and goods produced by the great minds of the Western world. Infringement of intellectual property rights, according to Vice President Joe Biden is “theft, clear and simple.”25 The illicit use of intellectual properties is “smash and grab, no different than a guy walking down Fifth Avenue and smashing the window at Tiffany’s and reaching in and grabbing what’s in the window.” 26 There is no moral gray area in their descriptions of infringement; it is a black and white issue which implicates economics and physical threats, not the global inequalities sparked by creating a Western monopoly on information as well as a system of intellectual property that is fundamentally neoliberal. Taken together, these examples demonstrate that discourses of trademarks, copyrights, and patents are important spaces for contemporary processes of racial formation, the process through which racial categories and racial identities are rhetorically and performatively produced, transformed, and destroyed.27 Over the course of the last decade, “the rise of intellectual property,”28 a phrase popularized by Siva Vaidhyanathan, has dramatically altered not only the nature of knowledge production and the economy of information ownership but also the political rhetorics and performances through which American national and racial identity is constituted. Yet intellectual property’s influence on national and racial identity is not new—though the constitutive effects of trademarks, copyrights, and patents have evolved over the years, they have existed since the formation of America and the development of intellectual property itself. These examples are emblematic of intellectual properties’ constitutive and interpellative implications in the context of race. The problematic racial representations normalized by and through discourses of trademarks, patents, and copyrights structurally exclude marginalized groups, create the symbols through which racial Others are identified as inferior, and normalize racial difference as a means of social organization.29 The problematic racial representations validated by and through discourses of trademarks, patents, and copyrights become justifications for exclusionary material realities, creating a feedback loop of exclusionary practices which naturalized racism and the promotion of unequal access to knowledge.

The idea-expression dichotomy refers to the legal fact that, per $102(b) of the Copyright Act, expression is copyrightable but ideas are not. In part due to the collection practices of folklorists, e.g., Alan Lomax, Black musical innovations have consistently been treated as raw material for the taking, i.e., musical ideas outside of the scope of copyright law and not as tangible expressions deserving of copyright protection. # For Lomax, the mere act of collecting music by pressing record on a tape machine justified credit ranging from arranger to composer on blues sound recordings.# The fixation requirement refers to the legal fact that $101 of the Copyright Act requires creative works to be "fixed in a tangible medium of expression" to be copyrightable.

Because Black musicians often built upon familiar aural traditions while being denied access to legal tools and rights, such as literacy and ownership, their artistic works tended not to be fixed in any tangible medium of expression. Moreover, because courts have created a high bar for the protection of rhythm, which is central to many Black musical traditions, they have also de facto-privileged European creatorial cultures by centering melody and decentering beats. As Even those Black creators who did fix their work in the tangible medium of the sound record-ins, as required by the Copyright Act, could not claim copyright protection until the 1970s.

As I have tried to argue throughout this chapter, sampling, layering, and rhythmic ›ow/asymmetry lead hip-hop aesthetics toward ironic forms of narration and ambiguous criticisms of American culture. Intellectual property law and legal discourse, however, have historically assumed that meaning is directly correlated to the words, sounds, or images of a given text. While irony revels in ambiguity and double meanings, intellectual property law operates as if words have a distinct meaning without reference to any particular audience or cultural context. One of the primary analytical tools upon which courts have relied in copyright law is the idea/expression dichotomy.92 Thus, an author can own the expression or particularly wording of a concept, but not the concept itself, because legal discourse has determined that allowing authors to own particular articulations of an idea provides the necessary balance between innovation and property rights and between the creator and the public. This scheme functions properly as long as particular expressions denote one distinct idea. Hip-hop aesthetics challenges this assumption of copyright law because its aesthetic theory presupposes ambiguity and double meanings and carefully constructs these texts to produce these ironies through sampling, layering, and rhythmic /asymmetries. Rather than assuming that a particular text constitutes a subset or articulation of a given idea, hip-hop aesthetics turns this relationship upside down and attempts to transform a single expression into a multiplicity of ideas. For example, when Jay-Z samples from the musical Annie in his song “Hard Knock Life,” he transforms the meaning of a “hard knock life” even if copyright law required him to pay a royalty for merely copying the song. The idea/expression dichotomy breaks down when applied to hip-hop producers because their verbatim copying frequently shows how multiple ideas exist within a single expression. It is precisely this free play of ideas, which hip-hop promotes, that intellectual property law regulates and limits.

My thinking about private property – as cultural metaphor and as abstract value determining and governing scales of existence – is also informed by scholarship on ownership and property in American and African American literature (Best, Fugitive; Clymer; Homestead; King, Race, Theft; Luck; Schneck) as well as by interventions from the scholarly field of law and literature (Coombe; Dolin). Flowering as a movement systematically investigating the correlation between the law and literature since the 1980s (Dolin 1), thinkers working in this context have since pointed to the “narrativity” of the law and its textual articulations (Brooks and Gerwitz; Rose) and have discussed this in relation to issues such as literary property rights, intellectual property rights, copyright, and constitutional rights (Buinicki; Ely; Hesse; Irr). Commenting on the importance of the politics of form for the domain of property and its various configurations in American law, Best in The Fugitive’s Properties: Law and the Poetics of Possession suggests that the interplay between slave law and intellectual property law “help[s] redefine the very essence of property in nineteenth-century America” (16). Following Best, the conceptual correlations between property and personhood established under slavery continue to live “within the text of the law” and they do so within the specific frame of the emergence of intellectual property law towards the end of the nineteenth century (14).

We read: The issues of personhood and property that slavery elaborates and the issues from the emerging law on intellectual property are part of a fundamental historical continuity in the life of the United States in which the idea of personhood is increasingly subject to the domain of property. Slavery is not simply an antebellum institution that the United States has surpassed but a particular historical form of an ongoing crisis involving the subjection of personhood to property. (Fugitive 16) 1.4 Private Property as Cultural Metaphor and Literary Form 17 Best’s analytical focus on slavery jurisprudence and intellectual property law configures a new ensemble of questions concerning “the social specificity of the person-property relation as the law tries to come to terms with new configurations of that relation and, in turn, generates new forms for that relation” (16).

Courts have had no trouble finding "integrity" in the identity of a trademark, nor in characterizing a marketplace injury to a trademark in personal terms." Woody Allen's "schlemiel persona" was protected on both Lanham Act grounds and his right of publicity when an advertiser sought to impersonate it.13 The controversial White v. Samsung case, involving a wigged robot turning letters on a game show set, advanced the emerging idea that publicity rights expand beyond a celebrity's name, voice, or signature, to other indicia of personality.14 Whatever the theory justifying such an expansion, intellectual property and its cultural referents are with few exceptions owned, licensed, traded, securitized, and protected against trespass like traditional forms of property. 5 The combination of forces, cultural and legal, feeds a climate of universal commodification. I join those scholars who find these developments problematic, 6 especially for the person. The "hyperreality" Baudrillard described, in which these signs take hold of popular meanings, is not a neutral playing field. Whether the danger of universalizing commodification to the point of selling personhood is critiqued for its damage to a pluralist notion of "human flourishing" 17 or for its likely constriction of free speech and a robust public domain,"8 unchecked propertization portends a diminution of personal identity. Exactly where we should draw the line is unclear, but "draw it we must."19 Yet, race, as always, complicates the analysis. Many partial or universal noncommodification arguments fare less well when the commodifier-producer is a black male identity seeking protection for the commercial exploitation of himself. Baudrillard's observations lose their neutrality when the code of product branding is used deliberately to elevate and fix the meaning of an outsider's identity. Most of the examples above, not coincidentally, involve black men. Although one might have assumed that the most likely candidate for the first human trademark would be Martha Stewart (before the public meaning of her identity was tarnished permanently by a securities fraud conviction) 2° or Richard Branson of Virgin Airlines, black men like Woods, Jordan, Michael Jackson, and even O.J. Simpson, demonstrate that black personhood in the marketplace has perhaps the most exacting demands for image maintenance and protection. To be commercially successful, these personalities must overcome the stereotypes of personhood that are deeply ingrained in public consciousness. Owning lucrative rights in a fixed, self-authored identity that is federally protected from interference could present, for some, a dream-like temptation. Doing so would effect a classic self-redescription of culturally historic dimensions. In this Article, I present a friendly but, I hope, formidable challenge to legal opponents of commodification through the vehicle of the toughest case hypothetical. My vehicle is MarCus, a racially conscious, enormously successful black advertising mogul who has strong personal and professional reasons for trademarking his persona. This challenge, therefore, extends to the liberalizing trend in intellectual property law, exposing the fault lines in judicial endorsements of more expansive rights. The problem throughout the Article is that MarCus's arguments appear to be well-supported and, to some readers perhaps, superior. To further complicate the issues of intellectual property rights expansion and human commodification by law, I explore a racial dimension to his quest. After all, race, like trademarks, concern’s identity. Here, race works differently in different contexts, but it mostly serves to privilege MarCus's claim to commercial self-authorship. 2 ' Race also provides a more complex motivation and a justification for seeking personal commodification than mere financial gain. That is, legal commodification in this illustration may result in public redescription of a traditionally debased personhood. Such redescription has the kind of penetrating individual and collective repercussions that best demonstrate why an issue like legal commodification is so important in the first place.

Part I presents MarCus's detailed personal narrative in which he defines himself as a character (and a client) answering the threshold question of whether becoming the first registered human trademark is a desirable quest.2 His explanation sets forth several themes that appear later in the exercise, including the meanings of commercial signifiers in advertising, the role of consumption, his own race consciousness, the role of competitive identity, the economic significance of black self ownership, his conception of personal freedom, and the strategic "fraud" of claiming a race-neutral or colorblind commercial identity.

K. J. Greene, Olufunmilayo Arewa, Keith Aoki, and Stephen Best have recently examined how these “hidden” forms of racism or racialization constitute part of the foundation of copyright and trademark law. K. J. Greene observes that “an underlying assumption of race-neutrality pervades copyright scholarship. However, not all creators of intellectual property are similarly situated in a race-strati‹ed society and culture. The history of Black music in America demonstrates the significant inequality of protection in the ‘race-neutral’ copyright regime.”66 Greene explores how inequalities in bargaining power and pervasive societal discrimination left most African American jazz, blues, and increasingly hip-hop musicians powerless to claim complete ownership of their creations. Record compa- nies and producers found that a combination of contract and intellectual property law supplied them with the legal means to strip musicians of their ownership interests. Greene also claims that copyright law, due to its requirement that protected items be written or tangible texts, privileges Western forms of creativity, emphasizing composition over African American forms that tend to emphasize orality, improvisation, and performance. He suggests that African American cultural production follows different patterns and thus receives less protection from intellectual property law. Following Greene’s analysis, Arewa shows how George Gershwin and his heirs could “own” his version of African American stylings in Porgy and Bess and other songs because his creativity focused on composing scores.67 For Greene and Arewa, it is not simply formal legal doctrines but the social structure that produces the unequal distribution of ownership interests.

Beloved and the Vanilla Nightmare series anticipate these criticisms as they reveal how African Americans have entered property law too fre- quently as property to be owned or as trespassers to be excluded, rather than as owners. For Sethe, legal discourse, social institutions, and cultural relations come together to undermine any attempt to claim ownership over herself and her family. Baby Suggs, Sethe, Paul D, and even Denver disagree about exactly what kind of property claims they should make and what those claims might mean. Legal discourse provides little guidance for African Americans about claiming ownership rights, either through con- tract or through intellectual property law, primarily because they had little ability to participate in the crafting of official doctrine. Their experiences, institutions, and cultural traditions do not shape property law’s normative assumptions. For Piper and today’s hip-hop aesthetes, law continues to recognize the ownership of raced properties. Copyrights and trademarks still confer ownership rights over racialized images, texts, logos, and sounds. Hip-hop texts do not assume that racism or racialization has withered away or that legal discourse operates in a color-blind fashion. Rather, hip-hop aesthetics reveals how postmodernism’s play and ambiguity stem from its reliance on the unconscious mapping of racism onto social rela- tions. These samples recontextualize and thus make obvious what intellec- tual property law erases or hides. Thus, Piper completes the American Ex- press advertisement by depicting the unspoken fear behind the company’s famous slogan.

However, Baker’s task in situating African Americans within this cultural framework was a difficult one. In the frenzy not only to assess new inventions, but to use their numbers and categories to assess American progress through the precious national commodity of “Yankee ingenuity,” late nineteenth-century discussions of inventiveness were increasingly confined to the patent record rather than to inventive activity more broadly, as these discussions had long been understood.1 Lists of new patents and patentees peppered the pages of Scientific American and were published weekly in a USPTO digest. These were analyzed and discussed in widely circulating newspaper and magazine articles bearing titles like “Uncle Sam’s Latest Triumphs”(2) and “Women Prove Inventive Genius Through Patent Office Record” (3). Such articles drew primarily from the patent record to advance arguments about the contributions of various groups, industries, and regions to American power and productivity, and to situate them as worthy citizens. As Baker well understood and as historian Rayvon Fouche has since noted, “inventions that received the federal stamp of approval with a patent confirmed that black people could achieve civilization” (21). However, until 1865, enslaved people had been legally disqualified from owning any property at all, including patents (Johnson).2 Even at the time of Baker’s writing, racial discrimination among lawyers and financiers made it difficult for Black inventors to patent their work (Fouche 14). Patent numbers were thus a poor record of their long legacy of inventive contributions to the young nation. Baker’s efforts were further complicated by the USPTO’s color-blind application system, in which applicants were not invited to disclose their race.3 He notes that although “something over 1200 instances have been gathered as representing patents granted to colored inventors . . . so far only about 800 of these have been verified as definitely belonging to that class” (6). And, despite the often-touted low cost of patenting in the United States compared to other nations, the $30 to $35 initial fee and periodic renewal costs were a barrier for many Americans, African American and otherwise (Khan164). As a result, many Black inventors would simply put their inventions into circulation without patenting them. Others would attempt to assign their new patents to someone else who could better afford the costs of manufacturing their innovation. Fearing discrimination, Baker notes, still others would actively conceal their racial identity in attempting to promote their inventions (6). Within this context, it was extremely difficult for Baker to document Black invention through the patent record, even as he reminded readers of all of African Americans’ unpatented inventive activity over the previous two centuries. In the many years since Baker’s writing, patents have remained central to American conceptions of technology, innovation, and ideal citizenship. More than any other genre, the patent sustains the mythology of the self-made American inventor as (White, male) ideal citizen. In addition to protecting the profitability of a particular idea or design for a person who has secured a patent, patents function rhetorically to materialize the persistent myth that inventions are the work of a single person—a Romantic “citizen creator” (Vats 47)—and accomplished through sheer ingenuity rather than the ongoing, widely dispersed efforts of people working within a community of practice. Likewise, the equation of the official document of the patent with the human capacity of ingenuity disguises the biases within the patent system and within patent law itself, which rhetorician and legal scholar Anjali Vats has argued continues to affirm racial scripts that center White men’s inventive efforts (15). In order to broaden our understanding of the history of invention, then—to address distortions in the way we understand who has invented, under what conditions, through what avenues, and for what purposes—we must both consider the challenges of patenting and develop methods for examining the inventive activities of those who have operated largely outside the patent system. Such a pivot aligns well with calls from technical communication scholars such as Angela Haas, who has argued for the need to seek out “diverse and underrepresented histories of technological use, production, and expertise” (304). So, too, does it reflect Natasha N. Jones, Kristen R. Moore, and Rebecca Walton’s desire for an “antenarrative” of the field of technical communication to provide a “poly-vocal, dynamic, and fragmented—yet highly interconnected” and “nondominant . . . narrative[...] about the work our field can and should do” (212). Heeding such calls means both interrogating the centrality of the patent to our narratives about invention and considering how attending to other sorts of texts might reveal forms of innovation that remain, for a variety of reasons, unpatented. Heeding these calls also means we must question old methodological assumptions about what constitutes definitive or even viable evidence of technical or inventive activity. Here, I draw from feminist rhetorical historiographers Gesa Kirsch and Jacqueline Jones Royster’s concept of “critical imagination” to “think between, above, around, and beyond” the patent (71) in order to glimpse “something not previously noticed or considered” (72) as evidence of inventive activity. Because I am shifting my attention from the individual patent holder as “the” sole inventor to the shared, ongoing inventive activities of communities, I am not so much interested in locating an individual’s sketches, journals, or models of specific invented objects as in the circulation of shared and contested knowledge about broader areas of invented activity. As a result, I use Royster and Kirsch’s concept of “social circulation” as a means of seeing “how ideas circulate[d] . . . across places and regions in local, global, and transnational contexts” (99) through artifacts not traditionally associated with invention, such as instructions, newspaper articles, and correspondence. In what follows, I offer the patent as a site for exclusions and erasures, understanding it much like the mid-twentieth-century voter applications that Natasha Jones and Miriam Williams have investi-gated: as appearing to be “objective and neutral” while actually functioning “as a technology of disenfranchisement” (371). Whereas voter applications directly disenfranchise individuals, patents are systemically implicated in a broader cultural project of disenfranchisement that contributes to the long-standing equation between technological innovation and American citizenship, while simultaneously limiting how we define innovation and invention. As I suggest, the patent has functioned in this way because of the resources, literacies, and professional networks required to complete the application process; the competitive, individualistic, profit and linear progress-driven understanding of invention that it helped materialize; and its cultural significance in affirming the centrality of White, male citizenship as the standard against which all others might be measured. In addition to considering the patent as a genre of exclusion, I suggest that our ways of understanding, imagining, studying, and encouraging invention and innovation are themselves culturally and rhetori-cally situated “innovation rhetorics” through which we limit our imaginings of where, when, and to what ends innovation occurs. The US patent system materializes one rhetoric of innovation, affirming an individualistic, competition and profit-based innovation rhetoric that assumes a linear narrative of progress and contributes to the maintenance of a gendered and racialized ideal citizen inventor. It is because of this dominant rhetoric that our conception of technology remains so stubbornly tethered to mechanical, digital, and industrial realms (Gurak and Bayer; Oldenziel) and “new” innovations (Haas288). Identifying and situating innovation rhetorics helps us to denaturalize these ways of thinking. Additionally, innovation rhetorics help us understand that what counts as “relevant” evidence of inventive activity will vary depending on the historical and cultural context, which will help us to more effectively take up Baker’s project of recognizing invention beyond the patent. In short, I argue that scholars ought to undertake projects that understand invention as a collective activity in which members of a community of practice address a shared set of problems or tensions; utilize similar spaces, tools, and procedures in addressing these problems; and work through similar channels of funding, knowledge, and power. Such research involves the exploration of “innovation ecoystems,” a term coined by scholars in management studies to describe how innovation is encour-aged or incentivized in contemporary, industry, national, and global contexts.5 The concept might be usefully adapted to historical contexts to help delineate the unique systems through which innovations are shaped, enabled, and constrained, absent or in tangent with patents. Although it is beyond the scope of this article to fully delineate any one innovation ecosystem, here I offer a glimpse at one historical example of an ecosystem possessing its own innovation rhetorics that, because they do not always reflect the individualistic, competitive, profit-oriented, and linear thrust of our dominant innovation rhetorics, we might easily overlook as “inventive.”

All debate is performative, and all debaters of color embody their performance

The primary reason differentiating between traditional policy debate and performance debate suggests some obscured motive is because all debate is performative (Solt 2004). That is no surprise for debaters and their coaches, nor one would imagine the casual observer. Indeed, the form/content division is poorly suited for forensics competition (Johnson 2017). Put another way, the medium is the message (McLuhan 1964). This will not seem odd to rhetoricians or others who study performance, but it bears repeating for coaches, debaters, and judges who might not actively think about the ways they represent the debate activity and the ways different practices like labeling affect performative potentials. Of course, performance is polyvocal, meaning many things to many disciplines (Cassin 2009). This article is not intended to offer a strict definition of what constitutes performance debate (Is it all plan-less debate? Must there be non-prose? Is it different speaking styles?), because that definition is not necessary to understand how the label functions with respect to race. That performance might suffer from a tremendous number of definitions or understandings does not deny its importance to understanding a broad array of forensics activities and the ways in which debate participants engage them. Furthermore, even if there is concern about performance debate and its argumentative value, one cannot deny that debate of all types remains performative (Solt 2004)

Keeling’s Queer Times, Black Futures has a similar investment in discovering how capitalism uses speculation as a mechanism and how Black and queer speculation can disrupt those futures. Keeling’s “queer times” refers to the result of applying Glissant’s strategy of opacity to certain cinematic images. Doing so, Keeling argues, “enhances the queer temporalities within the cinematic; it stalls (however momentarily) recognition of those images according to existing systems of evaluation and commensuration. An insistence on opacity gives queer time for the conceptions for the world is sedimented or . . . accumulated within existing relations to appear now” (32). For Keeling, Black futures is an antifragile investment in the errant, the irrational, and the unpredictable, made by a political imagination that posits radical socioeconomic and geopolitical transformations.

The question of Black speculation takes center stage in Queer Times, Black Futures. Keeling begins with the market-driven speculations of capitalism and makes an important observation about the co-option of interdisciplinarity by capital, which seeks to reproduce itself in increasingly new fields, times, and locations. Queer time and its unpredictability and unknowability, Keeling argues, along with the Black radical imagination and the kinds of opacity it ushers in (35), makes it a threat to the kinds of futures capital needs to imagine in order to reproduce itself. Throughout the book, Keeling further maintains a sustained engagement with Herman Melville’s Bartleby (1853) as a figure of opacity and futures past (49). Keeling’s argument extends Deleuze’s conclusions in his discussion of “Bartleby” and Melville’s America to consider Bartleby’s relationship to the “New World.” Bartleby’s engagement with the politics of refusal offers us a way to understand Bartleby as a figure who “carries a potential to de-create the American project” (186).

Fugitive Time charts this utopian impulse as a theory of the experience of time: memories and anticipations, woundings and desires, culturally and historically marked. Through the lens of time as it manifests in the imagination—time as it passes from moment to moment—this study traces the embodied sensations and coursing thoughts that accompany one’s anticipated passage from subjection to freedom. It’s in the phenomenal outward vision and the subtle desire for transcendence animating Shikeith’s The Moment You Doubt Whether You Can Fly. It’s in the blink of an eye that separates the one figure’s dream of flight and the other’s seeming enactment of that dream. What I call “fugitive time” names the phenomenon in which one imagines what it might feel like to be free of the violence that has consumed blackness throughout the world for centuries. The anticipation of the outside of subjection is paramount, but the recurring haunting of violence as it bleeds into present consciousness remains fundamental, constituting the moment from which one flees. To be clear, this is not a theory of futurity or linear progress. Fugitive time’s utopia lies in the anticipated moment when pain has at last vanished from the body, whenever and wherever that may come, bringing with it a new form of being and being-in-the-world. As in all utopias, however, that moment of absolute release is elusive. If one does seem to touch on it, it quickly recedes. Instead, fugitive time is about sustaining the idea of the chase as a social gathering, the shared ecstasy of perpetually imagining in advance that moment of unburdening. As in Shikeith’s image, keeping an eye and a hand on the black balloon that just might lead, in that next moment, to new life.

In this book, aesthetics is how we see and witness fugitive time, as this introduction’s priming “scenes”—each revealing different valences and formations—demonstrate. The book attends to descriptive anticipation and desire in aesthetic works, how fugitive time manifests at the level of deliberately articulated ideas. But I’m also fundamentally concerned with the myriad ways fugitive consciousness is registered in narrative structure, in metaphor, in cinematic editing, in sonic texture, in physical objects and materials. To use the term Caroline Levine borrows from design theory, aesthetic form takes on “affordances”: “the potential uses or actions latent in materials and designs.” “Glass affords transparency and brittleness,” she suggests. “Enclosures afford containment and security,” whereas “the sonnet, brief and condensed, best affords a single idea or experience.”

Fugitive (Im)possibilities: Flight, freedom, and the Black Radical Tradition

History shows that slavery is incomplete and struggle against enslavement and capture is constant. The historical traces of fugitive mobility in the Atlantic world suggest a more complicated and contested vision of the plantation system than is represented in colonial and national archives or in cartographic renderings of the landscape. Closer reading of the archives, as we do in analysis of Ann Clark’s advertisement above, reveals that absconding—to visit a lover or family member, escape punishment, or attempt to permanently leave the condition of enslavement—was widespread. As Dunnvant et al. (this issue) show, plantocratic map-makers often misrendered territories under settler control to downplay the presence of maroons at the plantation’s borders. Flight was one of many modes of resistance scholars have documented: in the western and eastern Atlantic worlds, people rose up against their captors in West African barracoons, mutinied or jumped ship, revolted against plantation masters and colonial governments. Attention to both sides of the Atlantic is particularly important because the “Atlantic world” has tended to signify the Americas and Caribbean, a framing that elides the histories of resistance across the African continent and linkages between “Old World” and “New World” geographies.

The Color of Creatorship began with a look at “Blurred Lines” and the complicated and contradictory resolution that resulted from Robin Thicke’s initial lawsuit against Marvin Gaye’s estate. In part, Williams was a so-called “hard case” because it pitted people of color against one another in a manner that required the erasure of one or more forms of systematic discrimination while also refusing to take a critical look at the persistent problems of racial capitalism.

The amicus brief that sided with Gaye addressed only part of the problem of the case. Though it produced important counterscripts to the racial scripts and racial feelings that had disenfranchised Black creators before the 1970s, it also oversimplified the political economy of the situation in which copyright law—and indeed all intellectual property law—operates.

We emerge to critical thought in interaction with the limitations of the worlds we inhabit, but we can also bear their destructive traces and enact their exclusions in spite of ourselves. Aiming for generality, we can arrive instead at a disavowed parochialism, a “universality” that is suspiciously intimate with and defensive of the contingent specificities of our ways of life. Thinking can thereby become a tool for concealing parochialism, immunizing destructive social habits from criticism, and preventing perception of and engagement with that which could build our capacity for generality.

It is particularly the decolonial critique of Eurocentrism in philosophy and intersectional analysis and its critique of feminism that have illuminated this critical problem and inspired this paper. Decolonial critique targets what Santiago Castro-Gomez calls “zero-point hubris”: “the imaginary according to which an observer of the social world can situate themselves on a neutral observation platform that, in turn, cannot be observed from any point” (2021, 8). Coloniality is thus, as Nelson Maldonado Torres argues, the “systematic negation of sociality and ordinary forms of interhuman contact” (2012, 262) in favour of the imposition from outside of principles construed as universal. Kimberlé Williams Crenshaw (1989) shows how theory and antidiscrimination law are dominated by a “singleaxis framework” that, as Elena Ruíz (2018) notes, produces “social, institutional, and juridical systems that are structurally unresponsive to the needs, situations, and concerns of historically oppressed communities, and in fact may be the source of harm” (Ruíz 2018, 341). “Single-axis thinking” has encouraged feminists, for instance, to perpetuate the oppression of certain women in its complicity with anti-Black racism (Davis 1983), transphobic oppression (Bettcher 2021), capitalism (Fraser 2013), ableism (Hirschmann 2012), and “colonial feminism” (Ahmed 1992) or “gendered Orientalism” (Abu-Lughod 2013), as those dominant within the group-formations that stand to benefit from struggle against oppression hoard its successes (Táíwò 2022).4

In addition, Euromodernity’s schema of racial ordering ensures not only an imprisoning of the black body but also of black reason. The collapse of the slave into the prisoner generates a similar carceral outcome, or as Wilderson puts it, “the Black subject” is but “a prison-slave or a prison-slave-in-waiting” (2020, 251). The racial calculus of Euromodern method formulates a social arithmetic where Afrocentricity always equals a breach of civil society and therefore, warrants an expulsion from the body politic—of politics itself. Depoliticizing the black subject as political pathology, as monstrous embodiment, engenders a racial outlaw, a political felon—one who is perpetually conceived as a fugitive of modernity.

Euromodernity’s racial stratification became its most inviolable organizing principle. This separatist imperative of colonial modernity reveals that the need to separate the civilized from the barbarian will always requires an apparatus of control and containment. For this reason, Sarah Haley calls this configuration, “Jim Crow Modernity,” which is “the maintenance of this racial-gendered order vital to a nuanced understanding of the southern carceral regime” (2016, 3). Euromodernity or Jim Crow modernity is both an arrest of black political mobility and deeper still, a seizure of black futurity. What manifests is the displacement of blacks as felons—wards of the carceral state. The penitentiary, in its ongoing racial segregation, remained one of the last bastions of post-Reconstruction segregation: “It is as if the jail were a microcosm of Jim Crow and the organization of the jail an elaboration of a persistent social norm” (Robin 2019, 51). The grammar of Euromodernity also crystallizes what Steve Biko argued to be Apartheid’s defining feature, “a policy of racial segregation based on white superiority and ‘custodianship’ of and political exclusion of blacks” (2002, xxxiii). Custodianship, in its juridical sense, simply means blacks are held in custody—handcuffed—to their white proprietor. Like the plantation before it, the penitentiary stands as the new field of forced labor, whose teleological imperative is black exile, not merely from the temporal present as rights-bearing beings, but equally exile from both past and future. “[T]he history of our day,” as Du Bois observes, is a history of scientific imperialism: “That history may be epitomized in one word—Empire” (2007, 48). Euromodern method, in the Du Boisian view, was a captive enterprise which disavowed to avow “the domination of white Europe over black Africa and yellow Asia, through political power built on the economic control of labor, income and ideas” (ibid). Scientific imperialism constituted Euromodernity’s custody of ideas and its relation to an economy of forced labor regimes.

Intellectual Property law, the body of legal doctrine and practice that governs the ownership of information, is animated by a dichotomy of creatorship and infringement. In the most often repeated narratives of creatorship/infringement in the United States, the former produces a social and economic good while the latter works against the production of that social and economic good. Creators, those individuals whose work is deemed protectable under copyright, patent, trademark, trade secret, and unfair competition law, create valuable products that contribute to economic growth and public knowledge. Infringers, those individuals who use the work of creators without their permission, steal those valuable products and act as drains on economic growth and public knowledge. These narratives, while comforting, are frequently oversimplified in public cultural conversations, in ways that center and elevate Westernness and whiteness and obscure and replicate histories of race and (neo)colonialism.

The Color of Creatorship is a book about the historical and continuing relationships between race and (neo)coloniality in intellectual property law. In it, I join a respected and growing group of scholars in contending that intellectual property law is a set of rhetorics about citizenship. However, unlike those who have previously written about the relationships between intellectual property and citizenship, I focus on the latter as a discourse through which race and coloniality continue to structure doctrinal practices in copyright, patent, and trademark law. Citizenship in the United States was and continues to be a raced concept. More specifically, it is a concept constructed by and through constantly evolving public cultural conceptions of Americanness, white masculinity, property, racial capitalism, and labor.

I’m reclaiming my time… reclaiming my time…reclaiming my time

—Congresswoman Maxine Waters, July 2017

This is not to say that racialization does not occur within in the context of discussions of trademarks, patents, and copyrights individually. In fact, quite the contrary is the case. Rosemary Coombe, for example, argues that federal trademark laws actually created the means by which marketing firms were able to construct the American consumer. Trademarks became the texts through which American identity and racial hierarchy were articulated.42 Indeed, trademarks operate as much more than markers of brand identity, as they “provide symbolic resources for the construction of identity and community, subaltern appropriations, parodic interventions, and counterhegemonic narratives.”43 Trademark law developed, in part, as a means of creating an American identity, particularly one that normalized the superiority of whiteness and the inferiority of non-white Others. Images of Aunt Jemima, Uncle Ben, Black Sambo, and the Washington Redskins emerged as ways to both sell products and affirm the social significance of racial difference.44 Moreover, trademark infringers are commonly described as parasites, feeding off of the reputations of well-known trademarks.45 Kevin J. Greene reads copyrights as a means of excluding marginalized groups from access to the literal marketplaces of ideas, ensuring that only certain individuals, generally white, heterosexual males, are afforded access to the means of officially producing and protecting intellectual properties. For Greene, the very terms of trademark law are non-neutral, a “marketplace of racial norms” in which intellectual properties are protected along racial lines.46 Copyright infringers are labeled as pirates and criminals, condemned for their anti-social behaviors.47 Often they are represented as Asians who are represented as being unable to create, only steal.48 Jonathan Kahn addresses the naturalization of race in the patent context, demonstrating persistent links between the scientific study of genetic differences, particularly with respect to disease etiologies, and the belief in race as a biologically and not socially constituted category. Race-specific patents for drugs speciously suggest that racial identities can be reliably identified and medically treated.49 Moreover, patent infringers, like copyright infringers, are identified as imitators incapable of their own independent thoughts, calling upon Orientalist visions of China and India.50 These examples, particularly when read in light of contemporary political rhetorics on trademarks, copyrights, and patents suggest that there is a commonality in the type of person that commits “IP crime”—the intellectual property infringer is associated with a constellation of negative characteristics, including laziness, dishonesty, immorality, and disregard for human life. Moreover, intellectual property functions structurally and through representations to create a presumption of race-neutrality that erases histories of race. Just as the grouping of intellectual property into one category has a strategic utility in the context of policy decisions—most often to justify increasingly draconian penalties for infringement—it has significant cultural implications for racialization and the perpetuation of racial stereotypes. Specifically, the homogenization of “IP Crime” erases the individual relationships between copyrights, trademarks, and patents and race. As a result of this erasure, trademarks, copyrights, and patents receive the protection of a veil of race-neutrality, facilitating appeals to neoliberal economic principles of efficiency and profit maximization to judge the success of a policy proposal. 51 Not only does this promote unjust distributions of access to information but also understandings of race. The links between intellectual property infringement and racial difference in part derive from the relationship between trademarks, copyrights, and patents and Enlightenment thought and Western colonialism. James Boyle argues that the image of the “romantic author,” which originated with Enlightenment visions of progress, animates contemporary intellectual property law. Envisioned as the sole creator in a study or laboratory who, in a moment of creative genius, produces a new and masterful work of art or invention, the romantic author is the product of the Western imaginary.52 Trademarks gained popularity in America during a time of Westward expansion, as a means of solidifying white superiority.53 Increasingly, then, discourses of trademarks, copyrights, and patents reinforce a dichotomy of creators and infringers, with the former being white Westerners perceived to be capable of producing new and innovative knowledge and the latter being associated with racial Otherness. Moreover, the association of intellectual property infringement with characteristics of racial difference often functions as a contemporary racial project, or attempt to deploy narratives of race in a manner that justifies the racialization of social structures, political organization, and distribution of resources.54 Representations of race in the context of intellectual property discourses operate as a means of justifying structural decisions that negatively affect the material realities of marginalized groups and systematically demonize racial Others. To return to Mukasey’s comments, the articulation of counterfeit “AIDS medicine” with “theft,” “organized crime,” and “terrorism” erases global inequalities in access to life-saving drugs. Moreover, racialized portrayals of infringement become a means of justifying the criminalization of intellectual property crimes, often to the detriment of marginalized groups and the neocolonial periphery. Representing the Chinese as dishonest and lazy works as a justification for cracking down on intellectual property rights violations, not searching for alternate conceptualizations of the problem. Intellectual property, as it is discussed in contemporary public culture normalizes a “racial common sense,”55 or tacit understanding about racial difference, that presupposes the untrustworthiness, deviousness, and dangerousness of racial Others with respect to infringement of intellectual properties. The term “IP crime” systematically silences racial Others, using traits often associated with difference to justify the imposition of Western understandings of creation. Racial common sense originates with mythologies which are circulated throughout public culture and come to be normalized and accepted. Myths are implicit and explicit archetypal narratives, rooted in historical experience and ritual, which guide the values and actions of society. Burke underscores the archetypal and prescriptive/proscriptive aspects of myth in Language as Symbolic Action, arguing that the creation myth, for example, is “a way of propounding ‘principles of governance,’ by translation into terms of narrative rather than as they might be formulated in philosophy, metaphysics, or theology.”56 Robert Rowland and David A. Frank, like Burke, affirm the role of myth in guiding action. For them, myths “answer the basic questions of human life, setting forth the values in the form of sacred and transcendent stories that inform speech and induce action.”57 In essence, then, myths come to guide thinking about the world, defining the boundaries of common sense. Omi and Winant maintain that racial myths are inherent to the American psyche and system of social order. Because they have become so common and embedded in national culture, they have become racial common sense: The continued persistence of racial ideology suggests that these racial myths cannot be exposed as such in the popular imagination. They are…too essential, too integral to the maintenance of the US Social Order. Of course particular meanings, stereotypes, and myths can change, but the presence of a system of racial meanings and stereotypes, of racial ideology, seems to be a permanent feature of US culture.58 In the context of intellectual property discourses, racial myths inform understandings of the identities of creators/infringers, “disseminating images of racial minorities which establish for audiences what people from these groups look like, how they behave, and ‘who they are.’”59 Images of infringers define the “who they are” as chronic criminals, unable to control the impulses to steal the creative works of others and follow the morals established by society. These racialized understandings of infringement also suggest that racial Others are incapable of contributing to the public domain or processes of knowledge production.

The demand far moral and ideological purity often results in the rejection of any hierarchy or organization. The question-can the master's tools be used to tear down the master's house?-ignores both the contingency of the relation between such tools and the master's power and, even more importantly, the fact that there may be no other tools available. Institutionalization is seen as a repressive impurity within the body politic rather than as a strategie and tactical, even empowering, necessity. It sometimes seems as if every progressive organization is condemned to recapitulate the same arguments and crisis, often leading to their collapse. 54 For example, Minkowitz has described a crisis in Act Up over the need for efficiency and arganization, professionalization and even hierarchy, 55 as if these inherently contradicted its commitment to democracy. This is particularly unfortunate since Act Up, whatever its limitations, has proven itself an effective and imaginative political strategist. The problems are obviously magnified with success, as membership, finances and activities grow.

This refusal of efficient operation and the moment of organization is intimately connected with the Left's appropriation and privileging of the local (as the site of democracy and resistance). This is yet another reason why structures of alliance are inadequate, since they often assume that an effective movement can be organized and sustained without such structuring. The Left needs to recognize the necessity of institutionalization 56 and of systems ofhierarchy, without falling back into its own authoritarianism. It needs to find reasonably democratic structures of institutionalization, even if they are impure and compromised.

Seeking out alternatives is a crucial avenue of investigation at the current moment. I cannot help but think something has been lost when the world embraces the idea of private property as the dominant paradigm to control all aspects of our creative lives: when everything becomes a commodity and everyone becomes a consumer. But this commodification is not happening without resistance.10 The work of asserting alternatives to intellectual property is an interpretative battle. Intellectual property remains in the process of definition – there is a struggle to define the scope and meaning of the law, and it is this struggle that is the central focus of this book. Part of the interpretative battle for alternatives takes place within the framework of copyright and patent law. It is necessary to interpret the law in such a way that exchange of ideas remains central and possible. However, alternatives can (and should) be sought outside the law. These alternatives include: developing and protecting non-Western property systems; articulating rights that transcend property rights; perhaps even embracing the idea of no ownership at all.

Having taken the journey towards understanding intellectual property as a system, I still try to resist the over-expansion of intellectual property rights whenever possible. I try to keep my own sense of ownership over intellectual work to a minimum and focus on the intellectual rivers that make my own work possible. I am not alone in trying to resist the expansion of property rights. The chapters in this book document a growing level of resistance, both theoretical and practical, to the over-expansion of intellectual property rights. Small and large resistances to our current intellectual property path are emerging every day. Resistance ranges from academic scholars who advocate minor repairs to the copyright code to transnational activists engaged in a reconstructive narrative of human rights that could lead to paradigmatic shifts in the way we create and protect work. These alternatives, through their very existence, debunk the intellectual property ideology that so loudly asserts we need strong intellectual property laws to ensure people create. Many people create all sorts of things without understanding intellectual property law. What the language of intellectual property masks is the global political economy of highly concentrated copyright and patent ownership where corporations, not people, are the beneficiaries of the system. Slowly, resistance to the expanding idea of property is developing as people begin to reimagine cultural work outside the language of property and rights. This reimagining is crucial, I would argue, to the development of a human culture beyond corporate culture and to the protection of people who may not have access to the benefits of a neo-liberal economic model.