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Since it began, the Movement for Black Lives, a coalition of 50 groups that includes the Black Lives Matter network, has not only attracted international media attention, it also garnered government scrutiny. In 2017, a leaked FBI report outlined what the bureau described as a growing threat of “black identity extremism” as a result of “perceptions of police brutality against African Americans.”

At least one black activist was designated a black identity extremist and arrested after he posted on Facebook expressing solidarity with a person suspected in the killing of a police officer. The charges were later dropped. News organizations also reported cases of FBI and local police surveillance and infiltration of black activist networks, including Black Lives Matter.

We must finally ask whether African Americans can rely on a totalizing ideology to shape our visions of black justice and our future in America. My answer is no. I believe we need a more flexible approach than ideologies such as black Marxism, black nationalism, and at least the Cold War version of liberalism have allowed. We need a black critical theory that draws on and combines liberalism’s concern with individual rights and autonomy, republican concerns with community, socialist concern with an egalitarian society and economic justice for all, feminist traditions such as resistance to suppressing intragroup differences in the name of a false and oppressive unity, and blends these with recognition of the need for autonomous organization and cultural pride. No single world view or ideology comfortably accommodates all of these. But a critical theory can—and such a theory must be political. We’ve had a black aesthetic, black power, and a plethora of black public policy pronouncements. But a black political theory has to embody a theory of the state, power, human nature, and the good life. And such a theory must be based on the hope for and potential of the improvement of human nature while recognizing the wickedness of the world. Kantian pronouncements about systems that can be governed by devils have led us to a world where ethnic strife and nuclear and other horrors proliferate. We must strive for something better, something democratic, something cosmopolitan, not in the elite sense but in the sense that, since homogeneity is a thing of the past, even within states, we must fall back on our basic humanness. It is no coincidence that within American political thought this perspective appears most often in the black traditions and in black political thought, at least in the contemporary period—most often in the black feminist tradition. Thus the best legacy of black political ideologies for America is a tough, activist, inclusive democracy willing to challenge privileges of power and resources in the name of a grander vision which asserts that we are more than the mere aggregation of our individual preferences. Its morality, while democratic, would not be based on the latest consumer fad nor use the return to stockholders as the final arbiter of the public good. That we often fail in living up to our standards of justice within black activism as well as within America—that we are imperfect as individuals and as communities—does not mean, as King so eloquently demonstrated, that the vision itself is not a worthy goal. What black critical theory and each black ideology have demonstrated is that the doable, the mundane, incremental reform of the workings of American society is not enough; only the full promise of America has the potential to be truly liberating. Any other solution is not only unsatisfactory—it is likely to provoke the kind of deadly conflict most clearly seen in the Civil War but also seen today in the rapid upward spiral of political and personal violence which results as people measure their circumstances against what they see as the lies that fester at the center of the American Dream. A new, black, critical theory needs to retain one aspect of black ideological visions. At the heart of all of the black visions is a sense of pragmatic optimism combined with a steadfast determination to gain black justice. Both the optimism and the determination are needed now as ever to sustain the political projects and new visions of African Americans.

However, by expanding the concepts of what constitutes a valid copyright, Star Athletica now provides the framework to hold KTZ liable for infringement upon a showing that the motifs could be separated from the parka's utilitarian functions and protected on their own. 105 Despite the parka itself representing a copyrightable object, the Copyright Act remains restrictive when considered in light of customary law and traditional notions of communal authorship. Thus, it presents hurdles to the protection of analogous Indigenous designs. Star Athletica exemplifies the benefits of utilizing broad legislative interpretation as a tool to provide for greater protections and lays the groundwork for preventing cultural appropriation by incorporating customary laws within the existing legislative framework by recognizing notions of communal authorship and strengthening moral rights.

The Supreme Court ruled unanimously last Monday in Fourth Estate v. Wall-Street.com, a copyright case that hinged on whether the “registration” of a work—which, by statute, must precede most kinds of infringement lawsuits—happens when the author sends in their application, or whether it happens when the Copyright Office makes a determination and sends back a certificate. There was a circuit split on the issue, in which some courts had gone with the “application approach,” and others had gone with the “registration approach,” and legal experts were divided on the question.

As of last Monday it is resolved. The Supreme Court went with the “registration approach” and said that unless you’re subject to one of the handful of statutory carve-outs you must wait until the Copyright Office does its thing before you can sue.

Significantly expanding the scope of monetary recovery for copyright infringement, the U.S. Supreme Court held, in a 6-3 opinion issued on May 9, 2024, that the Copyright Act’s three-year statute of limitations is inapplicable to damages and thus there is no temporal limitation for timely asserted claims. In issuing this decision, however, the Court explicitly sidestepped the threshold – and arguably pivotal – question of when a copyright infringement claim “accrues” under the Copyright Act, leaving for another day the resolution of what makes a claim “timely.”

The case, Warner Chappell Music, Inc. v. Nealy, involved a copyright infringement claim asserted by Sherman Nealy, who recorded and released an album and several singles in the 1980s with Tony Butler through their short-lived music venture, Music Specialist, Inc. The Nealy/Butler collaboration eventually dissolved, and Nealy served prison terms for drug-related offenses from 1989 to 2008 and from 2012 to 2015. Unbeknownst to Nealy, Butler licensed works from the Music Specialist catalogue to Warner Chappell while Nealy was in prison, one of which was used in Flo Rida’s hit song In the Ayer, which sold millions of copies and reached No. 9 on the Billboard chart.

First, the court said that the ordinary meaning of the word “increase” is “to make something greater,” which it believed should not “be limited to cases in which a company raises the rate that an individual has previously been charged.” 435 F.3d at 1091. Yet the definition offered by the Ninth Circuit compels the opposite conclusion. Because “increase” means “to make something greater,” there must necessarily have been an existing premium, to which Edo’s actual premium may be compared, to determine whether an “increase” occurred. Congress could have provided that “ad-verse action” in the insurance context means charging an amount greater than the optimal premium, but instead chose to define adverse action in terms of an “increase.” That def-initional choice must be respected, not ignored. See Colautti v. Franklin, 439 U.S. 379, 392-93 n.10 (1979) (“[a] defin-ition which declares what a term ‘means’ . . . excludes any meaning that is not stated”). Next, the Ninth Circuit reasoned that because the Insurance Prong includes the words “existing or applied for,” Congress intended that an “increase in any charge” for insurance must “apply to all insurance transactions – from an initial policy of insurance to a renewal of a long-held policy.” 435 F.3d at 1091. This interpretation reads the words “exist-ing or applied for” in isolation. Other types of adverse action described in the Insurance Prong apply only to situations where a consumer had an existing policy of insurance, such as a “cancellation,” “reduction,” or “change” in insurance. Each of these forms of adverse action presupposes an already-existing policy, and under usual canons of statutory construction the term “increase” also should be construed to apply to increases of an already-existing policy. See Hibbs v. Winn, 542 U.S. 88, 101 (2004) (“a phrase gathers meaning from the words around it”) (citation omitted).

Intellectual Property Rights (IPR), including trademarks and patents, encourage creative activity for the benefit of a free society. Innovations are protected through IPR and inventors afford an opportunity to derive fair returns from their investments. The acquisition of Intellectual Property Rights is one of the primary tools for incentivizing creators in a modern economy. Property rights are human rights that spark innovation and nurture economic growth. It has been the most effective mechanism to guarantee civil rights and civil liberties. Protecting individual liberty is the fundamental reason for a system of strong private property rights.

Throughout the unprecedented pandemic crisis, there has been a continuing debate about pat- ents for medicines. The right balance provides early access to affordable medicines with sufficient flexibility to protect intellectual property (IP). Patents are a part of the solution for the COVID-19 vaccine. Dismantling patent protection is not correlated with IP. In fact, scientists developed vac- cines in record time because of the security and resources provided by IP systems.

As for the infringement notion, it encompasses cases where a person who is not the owner or licensee and assignee of the owner of the IPR copies, reproduces, or exercises any of the exclusive rights granted in respect to the IPR in question without the license or consent of the IPR owner. Furthermore, infringement proceedings comprise both claims where the plaintiff brings an IPR infringement action or where the claimant starts a declaratory action to establish that the IPR is not infringed. The term pure infringement claims will be adopted to denote infringement disputes where the validity of the IPR involved is not raised. Additionally, the term transnational misappropriation of IPRs will be used synonymously with transnational infringement of IPRs. The term protection will be treated as synonymous to judicial enforcement.

Although the claims recite only one positional relationship between the gas equilibration reservoir and the conduit, namely that the former is positioned in the latter, the '824 written description (including both text and drawings) teaches three, separate positional embodiments.56 Turning first to the text of the specification, taught is one embodiment in which the gas equilibrium reservoir is "within" the conduit (col. 9, line 42) or "in" the conduit (col. 3, lines 18, 42).57

[BEGIN FOOTNOTE 57] Webster's defines "in," at 557, as "Within the bounds or area of" and "within," at 1268, as "In or into the inner part: INSIDE." Note that the definition of "within" incorporates "in." The word "in" does not require that something be completely and continuously inside of something else. A component may be "in" another component if it is located, at least in relevant part, in the defined space. See Foster v. Hallco Mfg. Co., 119 F.3d 16, 1997 WL 419391 at *8 (Fed. Cir. 1997) (non-precedential). See also Gemstar-TV Guide Int'l, Inc. v. Int'l Trade Comm'n, 383 F.3d 1352, 1372 (Fed. Cir. 2004) ("General use dictionaries define 'in' as 'used as a functional word to indicate location or position in space or in some materially bounded object.' Webster's Third New International Dictionary 1139 (1993). From these definitions, the ordinary meaning of 'storage means in a data processor' is a device capable of retaining data located within a data processing device or system."); TI Group Automotive Sys. (N. Am.), Inc. v. VDO N. Am., L.L.C., 375 F.3d 1126, 1136 (Fed. Cir. 2004) ("we affirm the district court's construction of the term 'within' as meaning 'inside'," stating "what is not outside is on the inside"). [END FOOTNOTE 57]

ABSTRACT In this Article, we argue that the U.S. Supreme Court should route most Federal Rules of Civil Procedure issues through the notice-and-comment rulemaking process of the Civil Rules Advisory Committee instead of issuing judgments in adjudications, unless the Court can resolve the case solely through the deployment of traditional tools of statutory interpretation. While we are not the first to express a preference for rulemaking on civil procedure issues, we advance the position in four significant ways. First, we argue that the Supreme Court in the civil procedure arena is vested with powers analogous to most administrative agencies. Second, building upon this insight, we present a justification for favoring rulemakings over adjudications by analogy to administrative law. Third, we couple this preference for rulemaking over adjudication with three criteria detailing when this presumption should apply. Namely, we conclude that civil procedure issues are better resolved by reference to the Advisory Committee if the issue (a) requires an interpretation of a rule that rests substantially upon legislative facts, (b) calls for the resolution of a Chevron step-two-like ambiguity, or (c) seeks a resolution that approximates a legislative rule. Only when traditional tools of statutory interpretation—text, history, and purpose—will resolve a case should the Court retain its disposition in the adjudicatory form. Fourth, we offer the mechanisms for pragmatically achieving this preference for rulemaking both under existing law as well as through a new “referencing” procedure, without unduly constraining the flexibility needed by lower courts to implement the civil rules effectively. In so doing, we contend that expanding the Court’s use of rulemaking not only should result in better rules but should also bolster the democratic legitimacy of the Court’s civil-rules decisionmaking. [AUTHOR CREDITS OMMITTED] INTRODUCTION Like administrative agencies, “[t]he Supreme Court is a regulator.”1 Nowhere is this more true than in the civil procedure context. Like an administrative agency, the Court’s role in civil procedure is to set policy—not simply to resolve particular disputes.2 And just like most administrative agencies—or regulators if you will—the Court may set civil procedure policy through case-by-case adjudication, as it did in Bell Atlantic Corp. v. Twombly3 and Ashcroft v. Iqbal 4 when it reinterpreted Federal Rule of Civil Procedure 8(a)(2),5 or by promulgating generally applicable rules through a notice-and-comment rulemaking procedure. As Justice Stevens wrote in his Twombly dissent: “I would not rewrite the Nation’s civil procedure textbooks and call into doubt the pleading rules of most of its States without far more informed deliberation as to the costs of doing so. Congress has established a process—a rulemaking process—for revisions of that order.”6 Although the Court faces this same choice between proceeding by rulemaking or adjudication every time it addresses a civil procedure issue—whether it is setting pleading standards, determining the advisability of sanctioning entire law firms for the misconduct of counsel,7 or refashioning the law of summary judgment8 —it has yet to devise a coherent framework for making this decision. Drawing lessons from administrative law, we aim in this Article to resolve this question by proposing that the Court create a presumption in favor of rulemaking over adjudication when deciding civil procedure issues. Administrative agencies regularly face the same adjudication-versusrulemaking decision confronted by the Court in the civil procedure context.9 Since the New Deal, Congress has routinely delegated broad lawmaking authority to administrative agencies charged with implementing a range of federal programs, just as it has delegated procedural rulemaking authority to the Supreme Court. In the course of implementing their delegated statutory authority, administrative agencies are tasked with numerous policy choices. For example, the Federal Trade Commission (FTC) must decide whether to consider certain business practices “unfair or deceptive.”10 In making these determinations, the FTC, like most other administrative agencies, has the discretion to choose between case-by-case adjudications, which create precedent, or by notice-and-comment rulemakings. Although statutes occasionally specify that an agency must use rulemaking or adjudication to make certain policy decisions, most statutes delegate authority to agencies both to promulgate orders and rules and to leave it up to the agency to decide whether to make policy pursuant to adjudication or rulemaking. This decision is known in administrative law as an agency’s “choice of policymaking form.”11 In SEC v. Chenery Corp.,12 the Supreme Court held that “the choice made between proceeding by general rule or by individual, ad hoc litigation is one that lies primarily in the informed discretion of the administrative agency.”13 Federal courts thus rarely second-guess an administrative agency’s decision regarding whether to use rulemaking or adjudication to make a particular policy decision. Given the ubiquity of these determinations, jurists and scholars have recognized that an agency’s choice of policymaking form is a momentous decision and have developed a rich body of knowledge as to which form is superior for addressing particular types of questions.14 We believe administrative law has much to offer the Court when it is deciding which policymaking form it should choose in making civil procedure decisions. We contend that because the Court, like an agency, may set procedural policy via either form, it is apt to analogize the Court to an administrative agency in this area.15 Given this congruity, we argue that the Court should conform to the longstanding consensus in administrative law that policy changes ought to be the product of rulemaking rather than adjudication. While many have similarly expressed a preference that significant procedural policy changes be made by way of rulemaking, not adjudication,16 to date, jurists and scholars have not offered a fully developed justification for this preference, presented a set of criteria for choosing between policymaking forms, nor outlined a mechanism for achieving this preference. Thus, in Part I, we further develop the understudied analogy between the legal authority of administrative agencies and the Court in the field of civil procedure. In so doing, we review the power of the Court, like an agency, to set policy through case-by-case adjudication and the Court’s agency-like rulemaking power to draft and revise the Federal Rules of Civil Procedure. We also strengthen this analogy by expounding on the striking similarities between the evolution of rulemaking experienced by both the Court and agencies.

As for the infringement notion, it encompasses cases where a person who is not the owner or licensee and assignee of the owner of the IPR copies, reproduces, or exercises any of the exclusive rights granted in respect to the IPR in question without the license or consent of the IPR owner. Furthermore, infringement proceedings comprise both claims where the plaintiff brings an IPR infringement action or where the claimant starts a declaratory action to establish that the IPR is not infringed. The term pure infringement claims will be adopted to denote infringement disputes where the validity of the IPR involved is not raised. Additionally, the term transnational misappropriation of IPRs will be used synonymously with transnational infringement of IPRs. The term protection will be treated as synonymous to judicial enforcement.

Posner begins The Problematics of Moral and Legal Theory by noting his own long history of interest in the relation between morality and law, specifically his attempts to demystify this relationship. To this end, he claims that his current book is the third part of a trilogy that contains The Problems of Jurisprudence and Overcoming Law." Posner notes that when judges look outside of the law for help in how to decide a particular case, they face a stark opposition of choices between moral philosophy on the one hand and pragmatism on the other." As Posner defines them, moral philosophy, a la Kant, seeks "a moral order accessible to human intelligence and neither time-bound nor local, an order that furnishes objective criteria for praising or condemning the beliefs and behavior of individuals and the design and operation of legal institutions." 13 Posner defines morality, the basis of this moral order, as "the set of duties (not necessarily just to other people-the duties could run to animals as well, or, importantly to God) that are designed to check our merely self-interested, emotional, or sentimental reactions to serious questions of human contact. It is about what we owe, rather than what we are owed .... Contrastingly, pragmatism asserts that when faced with a decision-making situation, one should turn to a combination of "policy, common sense, personal and professional values, and intuition and opinion, including informed or crystal- ,,15 lized public opinion. When the methods of pragmatism fail, one should turn to science instead of moral philosophy. 6 In short, moral philosophy offers nothing not only to adjudication and jurisprudence but also to anyone "engaged in a normative enterprise, quite without regard to law."17 In drawing the battle lines against moral philosophy, Posner concedes that all legal disputes have some fundamental grounding in morality, only he argues that this grounding is in fact so basic that it can be of no assistance in actually deciding the case. For example, there may be a basic prohibition against murder in all societies, but this moral universal is either tautological, in that it defines murder as any unjustified killing, or helplessly abstract, in that it shifts the debate to unresolvable questions of when killing is justifiable and when not. 8 By asserting that "there are no interesting moral universals,"'9 Posner rejects the Kantian project of a transcendent morality •20 that lies at the heart of what he considers to be moral philosophy. Posner, though, does not make much of an attempt to justify this statement, but essentially takes it as a given that morality is merely a feature of one's social environment. Part of this is a definitional problem. In effect, Posner defines moral issues in such a way that they only exist when they are unresolved: "By moral 'issues' I mean contested moral questions. When there is no contest, when everyone agrees on what's right, there is no issue and the need for theory does not arise."2 ' This, though, is to put the cart before the horse. For Posner, universal moral agreement is a sign not of a successful moral argument, but rather of a moral principle so basic that it need not be questioned. This position forecloses the possibility that the consensus could have been achieved through moral argumentation. On the other hand, if moral dispute exists, then it would seem according to Posner that this is a sign that a resolution of this dispute is inconceivable. While Posner may be correct that certain basic principles, such as that murder is wrong, are unhelpful in deciding complex moral issues, this does not lead to the conclusion that a dispute over moral outcomes necessarily results in the impossibility of their resolution. Implicit in Posner's argument is also the idea that the diversity of moral positions in the world today, many of them contradictory, demonstrates the victory of moral relativism over moral realism, at least from an empirical standpoint.22 If people are unwilling to abandon their moral positions because of the existence of reasoned argument, then the moral philosopher would seem to be at a loss of purpose. Furthermore, there does certainly seem to be a resonance with Posner's non-universalization position to anyone who has ever been in a passionate argument about moral principles and 23 failed to walk away with a changed mind. Indeed, it is the inability of moral arguments to change minds that Posner makes the crux of his argument against academic moral philosophers, whom he also calls "academic moralists."24 The source of the failure of academic moralists lies in what Posner sees as the motivation for moral behavior in the first place, namely the moral sentiments. Moral sentiments refer to those emotional reactions like pity or disgust that one experiences in certain situa25 tions and then translates into moral approval or disapproval. Because moral sentiments are not object-specific, they are, unlike 26 moral principles, universal. A further argument for the universality of moral sentiments comes from Posner's claim that the Y7are instinctual in origin and thus common to all human beings. However, the lack of specificity of moral sentiments also means that they 28 are useless in determining how to act in a given situation. For example, someone from a Western culture may experience repulsion at the idea of female circumcision, but this moral sentiment may not be experienced by the Ethiopian either performing or undergoing the procedure. Yet, this repulsion or lack thereof cannot be unproblematically translated into a moral argument that will convince the other side of the moral invalidity of its position. "A moralist cannot persuade you by the methods of reason to one morality or another, but he can offer you a morality that you can accept or reject for reasons of pride, comfort, convenience, or advantage, though not because it is 'right' or 'wrong." 2 9 This confirms Posner's point about the impossibility of resolving moral disputes through reasoned moral argument. But if all that academic moral philosophers can offer are reasoned moral arguments, ° then their usefulness for public morality falls away. In other words, Posner argues, academic moralists are unable to fulfill the very goals that they see as being the purpose of their enterprise.3 ' What I have been saying, though, should not be interpreted as suggesting that Posner rejects the existence of morality or its importance in shaping the beliefs that people have. Posner, who limits his criticism to moral philosophy per se, s does certainly believe that individuals hold moral positions and even that these positions can change, only that these changes occur not as the result of moral reasoning, but rather through appeals to the moral sentiments. If you want to turn a meat eater, especially a nonacademic one, into a vegetarian, you must get him to love the animals that we raise for food; and you cannot argue a person into love. If you want to make a person disapprove of torturing babies, show him a picture of a baby being tortured; don't read him an essay on moral theory. An academic moral argument is unlikely to stir the conscience, incite a sense of indignation, or engender feelings of love or guilt. And if it does, one has only to attend to the opposing moral argu- 33 ments to be returned to one's starting point. It is this appeal to moral sentiments that separates, at least for Posner, the moral entrepreneur from the academic moralist. The moral entrepreneur appeals to a mix of self-interest and emotional appeals "that bypass our rational calculating faculty and stir inarticulable feelings of oneness or separateness ... from the moral community that the moral entrepreneur is trying to create. They teach us to love or hate whom they love or hate." Posner cites as examples of moral entrepreneurs, in a grouping probably never before seen in history, Jesus Christ, Jeremy Bentham, Adolf Hitler, and Catherine MacKinnon. 5 These people have all changed the moral beliefs of others because of the effectiveness of their emotional appeals. This impact, Posner contends, is absent among academic moral philosophers. Academic moralists can offer interpretations of and help explain what past moral philosophers have argued and what the dimensions of current moral debates might be, but they can never provide definitive reasons for the adoption of one moral position over another.36 Thus, academic moral philosophy, to the extent that it is of any value at all, can only stimulate people to further moral reflection, far from the goal held by academic moralists of resolving moral disputes. "At its best, moral philosophy, like literature, enriches; it neither proves nor edifies."'

In his new book, The Problematics of Moral and Legal Theory, Richard A. Posner, Chief Judge of the United States Court of Appeals for the Seventh Circuit and senior lecturer at the University of Chicago Law School, disputes the idea that moral philosophy can be used to solve differences of opinion. Posner contends that the Kantian project of attempting to resolve moral disputes through moral reasoning is fundamentally and fatally flawed. However, Posner goes a step further to say that not only is it impossible to derive the transcendent moral principles upon which Kant's argument depends, but that as a result judges should not rely upon moral arguments in deciding how to rule on a particular case. 6 Posner supports his position by making a distinction between academic moral philosophers and what he terms "moral entrepreneurs. "7 While Posner accepts the influential role that moral entrepreneurs play in shaping public morality, he rejects the contention that academic moral philosophers can have a similar effect. Instead of moral theory, Posner argues in his book that judges should incorporate social science into their method of adjudication.8 By understanding the potential effects of given judicial decision, the pragmatic judge can create the "best" results for society. However, in making these decisions, the judge is constrained by existing laws and the morality contained therein. Drawing from Holmes, Posner argues that the only time judges should bring moral concerns into their decision-making process is when they feel a clear moral "outrage" against the position taken in the law which they are considering overturning.9 I want to argue that Posner is drawing an untenable distinction between morality and social science. Despite Posner's claims that judges can exclude morality from their decision-making process, this claim is based upon an overly narrow view of the ability of judges to parse issues when faced with a morally contentious case. Judges cannot escape making moral decisions, not so much because each possible decision has some sort of moral impact and rests upon a set of moral assumptions as Dworkin and Nussbaum among others have claimed, but rather because morality is sometimes the only thing they have left to fall back upon. Even in those cases where the claims of efficiency that Posner trumpets do have relevance to the case, moral concerns must often also be brought in. Social science can offer guidance in achieving the goals that society sets, but it can offer no guidance in setting those goals in the first place. While Posner wants to leave these questions to the political process to resolve, this is a false hope-judges cannot avoid moral determinations as to the goals of society due to the very nature of their role as interpreters of law. Thus, Posner is forced, at least implicitly, to draw upon moral argumentation in his theory of adjudication. I will construct my argument as a "contentious narration" of Posner's book. By this I mean that I will present Posner's argument roughly as it unfolds in The Problematics of Moral and Legal Theory but will question each stage of the argument as it moves along. By gradually conceding to Posner various points for the sake of argument, I will show both the strengths of his argument and the assumptions he makes which undermine later portions of his reasoning. I will start by explaining and questioning the distinction Posner draws between academic moral philosophers and moral entrepreneurs. After resurrecting at least partial validity for moral theory, I will argue that social scientific analysis provides no better guidance than moral theory for how judges should decide a case. From there, I will move to a discussion of the inescapability of moral arguments for judges, despite the importance of considerations of efficiency. I will conclude by suggesting that Posner may have some Kantian sympathies himself.

The Copyright Act of 1976 does not explicitly discriminate on the basis of race or culture.17 But copyright law was originally crafted in a Western society strongly influenced by the forces of racism and nationalism.18 Race is the socially constructed differentiation of groups based on phenotype.19 Despite being a social construction, race (and its associated cultures) has long been a critical factor in how the law has treated individuals, whether by design or in effect.20 To understand the predicament of racial minorities under copyright law, it is important to first examine the history of copyright law in the United States. Through the lens of critical race theory, this Part explains how the structural elements of U.S. copyright law have left minority artists’ works unprotected and open to white exploitation. The rise of critical race theory from the 1980s onward increased professional and scholarly consideration of how law affects different racial groups—with the ultimate goal being a “norm of ‘racial equality’ where different groups will not continue to suffer the oppression and subordination that they have suffered.”21 While races and cultures are continuously shifting and evolving, critical race theory has understood intellectual property principally as a model for protecting white, or Western, privilege, as well as this group’s understanding of society.22 As communications scholar Anjali Vats and intellectual property law scholar Deidré Keller concluded, a study of race and culture in the context of intellectual property should not be limited to the dichotomy of white and Black, but instead a comparison of the white or Western-created laws and their effects on racial minorities.23 The structure of copyright protections and rights under the Copyright Act have long provided unequal opportunities for racial minorities and their cultural expressions.24 From 1776 until the 1960s, U.S. intellectual property law’s relationship with artists of color was defined by “appropriation, degradation, and devaluation.”25 The music industry, in particular, profited enormously from the innovation of Black artists by capitalizing on fundamental genres of American music such as ragtime, blues, and jazz, while providing minimal remuneration or recognition for those styles’ Black progenitors.26 Music is representative of how U.S. copyright law considered Western perspectives on creative works, while failing to recognize nonWestern artists and artistic traditions. The structural elements of U.S. copyright—(1) requiring fixation in a tangible form, (2) disfavoring improvisation, and (3) mandating a known, recently living author—have led to lower compensation and recognition for racial minority artists or withheld protection altogether.27 Fixation is a basic requirement for any U.S. copyright protection—the work must be contained in a tangible physical form.28 This model of protection imposed a distinctly Western European tradition on copyright for all music.29 While Western Europe has a tradition of composers who drafted their music in written notation,30 other cultures around the globe have often lacked a written composition tradition, instead placing greater emphasis on a keen musical ear and improvisation.31 The centrality of fixation for music was set in an infamous court decision from 1948. In Supreme Records v. Decca Records, Inc., the issue before the Southern District of California was whether a white singer’s cover recording of a song recorded by a Black singer was lawful.32 In 1948, sound recordings were not yet protected under federal copyright, so the case was brought under unfair competition law.33 But, in deciding the case, Judge Yankwich imposed his own (white) musical tastes on intellectual property law; he concluded the original recording by a Black artist was “thi[c]k, mechanical, [and] lacking inspiration,” while a cover created by a white artist was “rich, against a musically colorful background. . . . sound[ing] full, meaty, [and] polished.”34 In addition, he held that anything added to a song in a recording alone, rather than the underlying musical work, could be freely copied.35 This was disastrous for Black and other non-white musicians, many of whom did not write down their songs in musical notation, which was necessary prior to 1978 to receive copyright protection for musical works.36 This long-standing bias favoring written over oral music37 is inherent in U.S. copyright law, leaving out protections for Black and other musical traditions. For example, African tribal music was transmitted orally for generations, and this tradition was maintained when Africans were brought as slaves to the United States.38 Based on their African oral musical traditions and enforced illiteracy under U.S. slavery, enslaved Black people created and shared music almost exclusively through performance.39In many ways, the experiences and methods of creation by Black artists—along with their under-inclusion in copyright law—can be likened to those of Indigenous artists.40 Native American and Indigenous artwork, music, and traditional knowledge are also frequently left outside the confines of intellectual property protection; this is due to existing for millennia, lacking an identifiable author, and being created by multiple people or an entire community.41 Scholar Trevor Reed explained that the unequal treatment of Indigenous creative works stems from the Copyright Act (1) requiring that works be fixed; (2) requiring that they are original; and (3) not allowing ideas to be protected.42 Indigenous cultures seldom physically record folklore or traditional knowledge.43 For example, Indigenous traditional oral music in the United States and around the world rarely manifests in written form.44 The resulting lack of protections for Indigenous artists led to their exploitation by creative industries.45 For example, the Zulu tribesman who composed the famous song from Disney’s The Lion King, “The Lion Sleeps Tonight,” was merely paid a small amount and only received credit for writing the song decades later.46 The Zulu composer was not alone; the low degree of originality required for copyright allowed imitators of artistic styles to make windfalls while the progenitors of those styles languished in obscurity since artistic style is not eligible for copyright protection.47 Several scholars and lawyers have tried to find a place for Indigenous community cultural expressions and traditional knowledge through specific intellectual property protections.48 However, problems with using copyright to protect Indigenous cultural heritage have persisted. Such oral forms of music creation were directly at odds with U.S. copyright law’s requirement that music be notated to receive protection.49The fixation issue was not remedied by including sound recordings in the Copyright Act. Sound recordings have been protected since 1972, but receive more narrow protections than other copyrightable works.50 The sound recording itself cannot be copied directly under copyright law, but anyone can freely imitate a sound recording, provided there is not an underlying musical work with copyright protection of its own.51 After 1978, phonorecords of sound recordings could be used to meet the fixation requirement for musical works.52 Fixation in a sound recording now qualifies for musical work copyright registration, but only if the recording artist and composer are the same person.53 However, this shift in the law still requires fixation—neglecting songs that were neither written nor recorded and merely sung or performed live.54 Improvisation is another non-Western musical practice not encompassed within U.S. copyright law. Improvising plays a central role in a number of musical traditions. African music emphasizes improvisation—with varying stanzas, melodies, and notes—instead of written stasis.55 Stemming from these African musical traditions, improvisation maintains an important and central role in Black music in the United States, from spirituals to hip hop.56 The various musical styles that emerged from Black musical traditions, such as jazz and blues, emphasize spontaneous—never written—improvisation.57 Indeed, blues music was traditionally not transcribed on sheetmusic at all, instead focusing on the musician’s ear and building off common lyrics and musical forms.58 African and Black music are not alone in utilizing improvisation. For instance, Middle Eastern music emphasizes melodic, improvised solos (called “taqsims”) and ornamentations.59 Indian classical music is also heavily based on unwritten improvisation.60 Despite the broad importance of improvisation across global musical traditions, it is not protected under, and even maligned by U.S. copyright law. Improvisation, as a spontaneous and live performance, does not meet the fixation requirement for copyright. In addition, improvisation from set melodies is at odds with copyright’s understanding of derivative works. A derivative work is a work “based upon one or more preexisting works . . . in which a work may be recast, transformed, or adapted.”61 Thus, arrangements or covers of copyrighted musical works qualify as derivatives and receive copyright protection.62 However, derivative works can only be authored by the copyright holder (i.e., the composer), as it is one of the copyright holder’s exclusive rights.63 Unlike other exclusive rights conferred upon the owner of a copyrighted musical work, there is nocompulsory license for derivative works.64 This allows the holder of a copyright in a musical work to refuse or condition the creation of a derivative work on unequal or even unconscionable terms, such as requiring the performer to sign over all rights in the derivative work.65 Related to the derivative work problem, a new issue has emerged since the inclusion of sound recordings in the Copyright Act of 1976: sampling—”the act of taking a portion of one sound recording and reusing it as an instrument or an audio recording in a different song or piece.”66 For example, the modern genres of hip hop and rap both depend heavily on sampling for musical expression.67 Yet, sampling was quickly blocked by the courts. In Grand Upright Music, Ltd. v. Warner Brothers Records, the Southern District of New York held that Biz Markie’s rap song “Alone Again” impermissibly sampled a portion from Gilbert O’Sullivan’s “Alone Again (Naturally).”68 The Court held—devastatingly for genres like rap—that sampling without permission from the original copyright owner constituted blatant copyright infringement.69 Obtaining licenses for every sample presented a significant logistical and financial burden for rap artists.70 And unlike other parts of music copyright, there is no compulsory license for sampling (i.e., reproducing the sound recording); it is instead up to the copyright owner’s discretion whether to license the work or not, and to name the price.71 This forced rap artists to change how they create music or risk copyright sanctions.72 Indeed, the challenges posed by copyright to Black artists have led many to alter their creativity or leave music entirely.73 A third way in which U.S. copyright law has not equally protected racial minorities’ creative works is in requiring a known, recently alive author to gain copyright protection.74 Many centuries old, traditional Indigenous and non-Western songs and arts have communal or unknown creators.75 U.S. copyright law requires a known author and only protects works for a limited period of time, leaving these important but ancient works in the public domain.76 While such works remain unprotected, others can exploit traditional music and arts for their own profit without worrying about copyright infringement claims.77 This facilitates the free commercial repurposing of Indigenous cultural symbols and practices.78 U.S. copyright law defines creative arts as endeavors that are at least partially about making a profit,79 but this commercial approach is at odds with other artistic traditions. For example, Indigenous and non-Western societies around the globe value music as integral to their communities’ culture, and for non-commercial purposes such as medicine.80 The commercial appropriation of Indigenous cultural expression can be especially harmful due to the spiritual or sacred nature of these works.81 Thus, in these three ways, copyright law’s structure poorly serves living musical traditions.82 In response to the inequality perpetrated by Western copyright laws, other countries have started providing more robust copyright protections for diverse and Indigenous creative arts. In Senegal, for example, the government passed legislation specifically protecting folklore from unauthorized use in 1973, requiring royalty payments when using folklore works.83 Meanwhile, Qatar protects national folklore and assigns authorship to the state to prevent improper use or commercial exploitation of traditional works.84 In Brazil, copyright law specifically provides protection for performers, including those performing folklore expressions.85 Azerbaijan does not protect works of folklore under copyright, but instead protects these works under a separate law entirely.86 Similarly, Ethiopia includes tangible and intangible cultural heritage under its cultural heritage protection law, which prevents uses of traditional artistic expressions and works that impair their historical, scientific, or artistic value.87 Many other countries at least acknowledge the special position of traditional knowledge under copyright and patent law, if not provide active protection for it.88 In stark contrast, U.S. copyright law and international copyright laws 89 have generally failed to provide protections for traditional and non-Western forms of cultural expression. The very limited exceptions are for Native American works, which are somewhat protected under false advertising and trademark law, but not copyright law.90 The Indian Arts and Crafts Act of 1990 prohibits misrepresentation of goods as Native American or Alaska Native goods.91 Alaska has adopted a similar Alaska Native handicraft certification program.92 Under its power to investigate unfair trade practices, the Federal Trade Commission (“FTC”) has investigated cases of companies falsely claiming a good is made by Native American people.93 The United States Patent and Trademark Office (“USPTO”) also created a Database of Native American Tribal Insignia as a reference tool of official tribal insignia for trademark examiners to deny trademarks falsely suggesting a connection with Native American tribes.94 While these initiatives are a worthy start,95 they focus on unfair competition and trademark law, leaving the poor protection for Native American works under U.S. copyright law untouched.96

As is true of judicial applications of copyright law, courts render section 43(a) determinations quite apart from any consideration of the authorial interests at stake when the right of attribution is at issue. Indeed, one court has expressly declared that the Lanham Act does not create a duty of attribution. [FN200] The foregoing discussion demonstrates that plaintiffs attempting to obtain a remedy for reverse passing off are disserved through their forced reliance on section 43(a) to redress violations that should properly be addressed within the scope of an independent right of attribution. Because the requirements for proving a case under section 43(a) are shaped largely by that doctrine's focus on preventing consumer deception, [FN201] courts become preoccupied with different manifestations of "falsity" at the expense of an author's personality and reputational interests. [FN202] An attribution violation harms the author's spirit, and the damage to the author's spiritual interest is the primary focus of the right of attribution. [FN203] As the law currently stands, this spiritual interest is capable of protection only when damage to consumers is present. [FN204] Even those courts that do find in favor of a plaintiff author based on a section 43(a) *1021 violation recognize and safeguard the underlying damage to the author's spirit as a secondary concern--the primary focus always is on whether consumers are deceived through the defendant's false representations. [FN205] As a result of this flawed doctrinal fit between section 43(a) and reverse passing off, only those plaintiffs who are successful in demonstrating a certain type of misrepresentation [FN206] or consumer confusion [FN207] will prevail. [FN208] It is possible to unpack even more completely the ways in which section 43(a)'s requirements of misrepresentation or consumer confusion effectively preclude the assertion of a right of attribution in many instances. Part I.B of this Article discussed four scenarios in which authors were left with inadequate protection for their attribution interests under copyright law. [FN209] By virtue of the theoretical disconnect between the right of attribution and section 43(a), certain situations also arise in which a plaintiff author will not be able to invoke section 43(a) to protect her attribution interest. Initially, it is important to note that a finding of consumer confusion requires the existence of distinct, recognizable subject matter. Although the Lanham Act is clear that section 43(a) does not require a registered trademark, courts invoke the same standards in determining consumer confusion under section 43(a) that they do for determining whether consumers are confused by a defendant's infringement of a plaintiff's federally registered trademark. [FN210] Nevertheless, section 43(a) protects only "qualifying unregistered" subject matter, and "the general principles *1022 qualifying a mark for registration under section 2 of the Lanham Act are for the most part applicable in determining whether an unregistered mark is entitled to protection under section 43(a)." [FN211] To "qualify" for such protection, a mark must be either "inherently distinctive" or have acquired distinctiveness through secondary meaning. [FN212] If a plaintiff author's work is not sufficiently well-known to trigger public recognition, it is questionable whether a plaintiff's act of "reverse passing off" will spark the necessary confusion on the part of the consuming public to support relief under section 43(a). Some courts have alleviated this particular concern by refusing to apply the requirements of "distinctiveness" or "secondary meaning" in reverse passing off cases. [FN213] The theory underlying these decisions appears to be that in a reverse passing off case, the very existence of the reverse passing off precludes the true author from developing the consumer association between herself and her work. [FN214] As these cases illustrate, courts applying section 43(a) to protect an attribution interest are forced to manipulate the existing commercially based section 43(a) doctrine so that it can be applied to remedy situations where a significant harm to the plaintiff is personal rather than economic. [FN215] Partial designations of attribution also can preclude an author from successfully relying on section 43(a) to protect her attribution interest. The situation in Qimron v. Shanks is illustrative of this problem. As discussed in Part IA, in that case the defendant Shanks published the deciphered reconstructed text of one of the Dead Sea Scrolls and attributed authorship to a particular professor working "with a *1023 colleague." [FN216] Technically, this situation does not give rise to a "false designation of origin" under section 43(a) because the defendant's representation was not untrue. [FN217] According to one commentator, the essence of a section 43(a) offense is absent under these circumstances because Shanks "fooled no one into thinking that one individual deserved full credit for a work in fact authored by two." [FN218] Instead, Shanks "honestly apprised the world that [the work] . . . had two fathers, although he listed only one by name." [FN219] Moreover, the argument has been made that Shanks' omission of plaintiff's name would not give rise to consumer confusion because most purchasers of Shanks' work would have been aware of Professor Qimron's role, and therefore the defendant's omission would not have subjected him to any "sensible diminution of his publicity or notoriety." [FN220] The facts of Qimron illustrate the disconnect between the attribution interest and section 43(a). Had the case been litigated under American law, it is probable that the plaintiff would have invoked section 43(a) in light of the absence of other alternatives upon which to base an attribution violation. Precedent does exist in this country for concluding that the failure to mention all joint authors to a project can give rise to liability under section 43(a), although those cases involve a complete omission rather than a partially oblique reference to an author's identity. [FN221] Nevertheless, regardless of whether the oblique reference to Professor Qimron was a sufficient mentioning to escape liability under *1024 section 43(a), the critical point is that both complete omissions, as well as oblique partial references, violate the inherent right of an author to be recognized as the source of her works. Whether the defendant's incomplete representations are technically true, or whether they will foster consumer confusion in the marketplace, is irrelevant to whether the defendant has failed to recognize the plaintiff's attribution interest. [FN222] The interface between section 43(a) and contract law raises yet another obstacle for authors attempting to vindicate their attribution interests through reliance on section 43(a). Cleary v. News Corp. [FN223] is illustrative of this conflict. In that case, the plaintiff author sued the publisher of Robert' s Rules of Order for omitting his name on the title page of a revised edition. In arguing that the publisher's conduct constituted reverse passing off under section 43(a), the plaintiff advanced the argument that "the Lanham Act protects an author against an inaccurate designation of authorship despite the fact that the author expressly contracted away the right of attribution" through a work for hire agreement. [FN224] Ultimately, the court did not decide this particular issue in light of its holding that even if the plaintiff did not relinquish his right to attribution, his right was not violated under the facts of the case. [FN225] Although Cleary illustrates the problem, rather than the solution, to the conflict between section 43(a) and contract law, district courts in other circuits have concluded that actions under section 43(a) cannot be brought when a contractual provision authorizes the defendant's conduct. [FN226] This interface between section 43(a) and contract law underscores the need for an explicit and non-waivable right of attribution, a point discussed further in the next part. [FN227]

The analysis of courts invoking the "substantial similarity" test under section 43(a) often mirrors, in application, a conventional preemption analysis under section 301(a) of the 1976 Act. As discussed in the foregoing section, courts inclined to sustain a section 43(a) violation in the context of reverse passing off cases involving copyrightable property typically conclude that "an aggrieved author must show more than a violation of the author's copyrightprotected right to credit and profit from a creation." [FN168] In fact, at least one district court applying this standard has recognized explicitly that "[t]his rule is analogous to the preemption rule that a state law claim requires an 'extra element,' beyond those tracing to any copyright," so that the nature of the section 43(a) action is "qualitatively different" from a cause of action based on copyright infringement. [FN169] Section 301 of the Copyright Act sets forth an express test for determining whether a particular state law is preempted by the 1976 Act. The test under section 301 has two parts. The first part of the preemption test focuses on the nature of the work protected by the state law. Specifically, preemption will not occur if the state law does not pertain to "works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright." [FN170] The states, in other *1015 words, are free to regulate all works that are not protected by the copyright law because of their nature or form of expression. [FN171] The second part of the preemption test emphasizes the nature of the rights that the state law attempts to safeguard. If the state seeks to protect rights that are "not equivalent to any of the exclusive rights within the general scope of copyright," the state's law will not be preempted by section 301. [FN172] The application of the equivalency prong of the preemption test thus requires a determination whether a particular state law creates rights that are "equivalent" to any of the rights protected by section 106 of the Act. [FN173] The 1976 Act does not define the term "equivalent," but the legislative history indicates that a state cause of action will not be preempted if it contains elements that are "different in kind" from copyright infringement. [FN174] In applying this standard, most courts have followed the late Professor Nimmer's suggestion that an "equivalent" right is one which "is infringed by the mere act of reproduction, performance, distribution or display." [FN175] Essentially, this approach requires an analysis of the state law in question to determine what acts will constitute an infringement. If the exercise of one or more of the specific rights protected by federal copyright law is all that is necessary to constitute an infringement of the state law, preemption will occur. If other elements also are required to infringe the state law, no preemption will result. [FN176] Significantly, Congress confined the preemption application of section 301(a) to state laws. The legislative history clearly states that "there is no intention to deal with the question of whether Congress can or should offer the equivalent of copyright protection under some constitutional provision other than the patent-copyright clause of article I, section 8." [FN177] *1016 Subsection (d) of section 301 expressly states that "nothing contained in [Title 17] annuls or limits any rights or remedies under any other Federal statute." [FN178] Thus, by virtue of the statute's express terms, Congress did not intend the section 301(a) analysis to govern situations where plaintiffs are invoking section 43(a), a federal provision, to obtain a remedy for reverse passing off when the subject matter at issue is copyrightable property. Even so, some courts, particularly district courts in the Seventh Circuit, have expressly relied on the section 301(a) paradigm to decide cases involving this issue. LaCour v. Time Warner, Inc., [FN179] an unpublished opinion, is representative of these district court opinions. LaCour involved a song initially recorded by the defendant which became the inspirational theme song for the movie Space Jam. [FN180] Several years after the song's initial recording by the defendant, plaintiff LaCour alleged that he was the song's sole and original author, and sued the defendant for copyright infringement, and violations of section 43(a) and state unfair competition law. In LaCour's complaint, he alleged that the defendant's version of the song was derived from, and substantially similar to, the plaintiff's version, and that the defendant made false and misleading representations to the public by claiming authorship of the song. LaCour concerns exclusively the question of whether the federal and state unfair competition causes of action are preempted by section 301(a) of the copyright statute. The court noted that in addressing the question of whether copyright law limits a plaintiff's right to relief under section 43(a), district courts in the Seventh Circuit have not relied on either the "bodily appropriation" or "substantial similarity" tests. [FN181] Instead, the district courts have compared a reverse passing off claim under section 43(a) to a reverse passing off claim under state unfair competition law, based on the theory that the requisite elements for both causes of action are the same. [FN182] Specifically, both state unfair competition law and section 43(a) causes of action are grounded in the identical objectives of protecting consumers from confusion and deception. Such congruence justifies applying the section 301(a) preemption analysis that governs *1017 state unfair competition law reverse passing off claims to section 43(a) claims involving reverse passing off. [FN183] Thus, as LaCour illustrates, district courts in the Seventh Circuit eschew the "bodily appropriation" and "substantial similarity" approaches endorsed elsewhere in favor of an explicit adoption of the section 301(a) framework. [FN184] Moreover, in determining what types of allegations would render a state law claim "qualitatively different" from one based on copyright infringement, LaCour suggests that a plaintiff must allege affirmative misrepresentations about the origin of the work. Such affirmative misrepresentations are in contrast to the inherent misrepresentations that otherwise accompany the unauthorized copying and reproduction of another's copyrighted work in a reverse passing off case. [FN185] In LaCour, the court held that the plaintiff had not made this showing because the essence of his complaint was the defendant's sale and representation of the song as his own work. As such, the plaintiff's complaint amounted to nothing more that an assertion of the defendant's "violation of the reproduction and derivative rights protected by the copyright law." [FN186] Of course, given that LaCour involved a motion to dismiss rather than a complete trial on the merits, the case provides little guidance regarding what type of allegations would meet the court's articulated standard of "affirmative misrepresentations about the origin of the work." [FN187] This procedural characteristic and consequent vague direction is representative of most other district court opinions in the Seventh Circuit, both those treating preemption in the context of section 43(a) as well as state unfair competition law. One court, in fact, has gone so far as to broadly suggest that "relief under the Lanham Act is redundant and unnecessary when a product allegedly is copyrighted," *1018 although the case dismissing the plaintiff's complaint contains no analysis of this sweeping point. [FN188]

When we think of private property, we think of three characteristics: the right to exclude others, title (ownership), and the right to collect income or rent off the property.'67 In each of the patterns of appropriation of Black cultural production, we see Black artists deprived of some combination, if not all three, of the private property characteristics of creative works. The American copyright system, unlike other areas of property law, identifies an "author" as the source and owner of certain rights, without ever locating authors in any social context. 168 Obviously, not all minority artists experience discrimination in the protection of artistic property. However, minority artists have almost certainly borne a heavier burden of exploitation. Although it cannot be said that the copyright system was intentionally designed to disadvantage Blacks, it has nonetheless operated in such a fashion. The factors which disadvantaged African-Americans as a group from acquiring traditional forms of wealth and property also imposed disadvantages in the intellectual property system.16 It has been noted that: intellectual property law can ameliorate but not eliminate underlying disparities in bargaining power [and accordingly] economic need might induce an impecunious author or inventor to part with control over her work, and even give up liberty to use it, perhaps in return for fairly small rewards. Thus, although intellectual property improves the creative person's position, it can guarantee neither adequacy of compensation nor continuation of control. 1 70 In the abstract, this observation seems sensible enough, but in the concrete, it fails to account for invidious, systematic discrimination which consistently forced a class of artists to part with their creative works "for fairly small" or no economic rewards.' 7 The impact on artists personally of the appropriation of their works was often devastating and tragic.' 72 Rock pioneer Little Richard sold his publishing rights to the record company for fifty dollars, "and part of that deal seems to have included the addition of a mystery name... to the songwriting credits."173 One might draw a parallel between Blacks in the share crop system to Black artists in the recording industry. The share crop system divested economic compensation from Black farmers who did not own capital resources (such as equipment, seeds, etc.), or maintain the financial records detailing who owed how much.174 Furthermore, many Black farmers were illiterate or sermiliterate, reflecting a legacy of segregated and substandard educational facilities. The result was pervasive exploitation of agrarian Blacks, despite the theoretical race-neutrality of the share-crop system.'75 Similarly, agents of the recording industry appropriated intellectual property from these same agrarian Blacks who created the music which came to be known as the blues. 176 Again, as in the share-crop system, white businessmen controlled the capital resources (such as record studios and publishing houses), as well as access to the expertise needed to secure legal protection. 7 7 In the employment area, Blacks had been subject to rampant exploitation; the situation seems identical in the artistic area, in spite of, and to a degree perhaps because of, copyright law.178 Particularly in a multibillion industry, such as the recording industry, it seems difficult to reconcile the fact that while Black-created music is omnipresent, the flow of dollars has only occasionally created Black millionaires. The fact that minority artists received less protection- or in many cases no protection- for their compositions undermines the incentive theory of intellectual property laws. Many Black artists received little no economic reward for their creations. 79 Others certainly received less than what they should have.'8 ° Something beyond the Western notion of incentive must have motivated these blues and jazz artists of Black ancestry to continue to create. 8' Perhaps the most taxing structural element of the copyright regime vis-a-vis Black artists has been the requirement of reducing works to a tangible form.'82 The copyright law will not protect works which are not "fixed" in some tangible form. In practice, this means that the work must be reduced to writing. Black culture, however, historically reproduces itself out of an oral predicate.'8 3 Furthermore, as a result of educational deprivation, many Black artists of the past could not functionally read or write. The reduction to tangible form or embodiment tenet clearly values written expressions, which will be deemed "tangible" over non-written, i.e. oral expressions, and non-tangible improvisation. ' The structure of the copyright regime itself, which requires fixation of works of authorship in a "tangible medium" could be said to impose disadvantages on Black artists as a class, who were raised in an oral tradition dating back to Africa.'18 It has been noted that "[tihe structure of preliterate society renders conventional intellectual property protection ineffective. Typically, such cultures lack both written records and formal government. As a result, westernstyle patent and copyright laws, which require elaborate documentation and bureaucratic enforcement, are not feasible". 8 ' Two prominent examples are jazz music and Africaninfluenced dancing. As one commentator pointed out: [tlhe Black approach to rhythm, being a function of the greater oral approach to time, is more difficult to define in writing. Capturing the rhythms of African or modem AfroAmerican music with Western notation is a lot like trying to capture the sea with a fishnet .... the complexity of this rhythmic approach is in large part due to the value placed on spontaneity and the inherently communal nature of oral improvisation. Other music scholars have similarly noted the incompatibility of jazz music with a system of written notation.88 Prior to 1976, it was necessary for musical compositions to be in written form to obtain copyright registration. 18 9 Hennessey notes that the "improvisation and tonal variations that were at the core of jazz performances could not be captured on sheet music, the main form of music distribution before 1914." 190 It has been noted that "[e]ven today ... music notation is the only way to actually copy a musical composition. A phonorecord merely captures a particular performance by musicians, whose interpretation and technique cause the performance to exist independently from the composition."' 9 ' However, "a singer's performance is not copyrightable under the federal law. ' In contrast to patent law, the copyright law has an extremely low threshold of originality. This threshold arguably preserves First Amendment values of free expression, but clearly promotes imitation which does rise to the level of actual plagiarism, or copying. 193 In practice, therefore, Black innovators in music have been powerless to prevent white imitators from capitalizing on their ground-breaking efforts, and, in a racially polarized society, reaping the profits of Black innovation and creativity. 9 4 The copyright regime's standard of minimal originality for authorship, while prohibiting outright copying, encouraged imitation.' 95 Certainly, a strong current favoring imitation animates American jurisprudence.'96 There is an inherent tension between compensating originators and promoting creativity by permitting borrowing. 197 Imitation may be the sincerest form of flattery, but in a society where separation is the norm, the direction of who profits from imitation has been decidedly one-way in its direction.' 98 Our society has arguably become less racially stratified in recent decades, yet the pattern seems present today; one of the topselling rap songs of all time is Ice, Ice Baby, by white rapper Vanilla Ice.' 99 Similarly, The Beastie Boys, a white group, were the first rap group to top the Billboard album charts."' The irony of this is stark when compared to the fact that "[flap music is a Black cultural expression that prioritizes black voices from margins of urban America....2 Perhaps even more ironic is that judges in recent times have characterized one of todays primary Black art forms - rap- as a form of theft.20 2 Under the idea-expression doctrine, only specific expressions of an author are protected, not the underlying ideas embodied in the work. Some have argued that the idea expression doctrine is intellectually bankrupt. 20 1 The idea expression doctrine has also penalized the most innovative artists in blues, jazz, and rock, essentially denying protection of their signature styles and denying compensation for the creation of genres. Little Richard's syncopated whooping style of singing, or the ragtime chops of W.C. Handy would be considered a style, essentially a non-protected idea, rather than a protected expression. However, copyright will generally not protect either style or genres, and imitation of style (e.g. Little Richard's style of singing to the Beatles on She Loves You, Yeah), is generally not actionable. 4 Accordingly, while a jazz composition is protectible under the copyright system, the idea or genre of jazz would not be.2 °5 This doctrine can be said to have a disparate impact on innovators of genres, vis-a-vis imitators that capitalize on a non-protectible "idea." The idea expression dichotomy of intellectual property precludes monopoly protection of rap or jazz as a genre. Yet, many of the innovators of these genres lived or died in relative obscurity and poverty, while the imitators, typically white and not nearly as creative or innovative musically, reaped a windfall.

During the Blues era, Black music labor was greatly exploited. Only a handful of blues singers profited much from their work.1 2 1 Many Black artists in the Blues era from 1920 to 1930 were subject to work-for-hire contracts, where an artist would be paid for his work but would subsequently assign his copyright to his employer.' 26 The copyright owner or constructive "author" of a song has an exclusive right to reproduce and distribute the song and therefore has the exclusive right (absent a license agreement) to profits from a song;127 thus, the employer in a work-for-hire situation gained the rights to future profits from the musical work. 2 8 Black musicians were hired for such work in disproportionately large121 numbers, yet they were paid less money than their White counterparts. Not only did such contracts hinder Black artists' ability to truly profit from their compositions, but they also symbolized general discrimination against Blacks. Hence, blues musicians may have recorded many of their original works of authorship, but under a work-for-hire contract, Black blues musicians were paid for their musical labor and never saw any monetary rewards for records that were released. One example of this is Eddie "Son" House, who was paid only thirty dollars for his numerous compositions and suffered from these contractual arrangements. 3 1 "Mississippi" John Hurt is another example of this circumstance, as he recorded twenty songs for Okeh Records and received twenty dollars per song; without any other economic return from his recordings, he retired to his farm. 131 In addition to the famous blues stars, the blues tradition has also subsisted on a large number of artists who have for various reasons remained anonymous. Few blues artists were recorded, and very few were financially successful regardless of whatever recordings they made. Despite their lack of financial success, blues musicians, immersed in the Black musical tradition, have strongly influenced several musical genres and artists through time. For example, blues musicians such as Muddy Waters, Bo Diddley, and Elmore James informed the earthy performance styles of the Rolling Stones. 32 B.Jazz and the Improvisation Tradition Jazz emerged between 1890 and 1910 in New Orleans 33 and was creatively inspired by the blues and ragtime.' It also shares some of the same elements of the Black musical tradition, such as improvisation, rhythmic and musical complexity, and call-and-response. Jazz music utilizes the musically complex "blue notes" and also focuses on the improvising performer as composer.1 3 ' The jazz performer creates as he performs, improvising notes and deliberately deviating from traditional notions of musical pitch. 3 6 Consequently, a written score represents the "skeleton" of a jazz performance.3'7 Jazz also introduced new instruments to popular musical performance, such as the saxophone. 13 Such instruments added rhythmic complexity as their musicians enhanced blue notes via their syncopated and polyphonic playing. 39 Jazz music also utilizes the call-and-response framework whereby a song consists of a series of melodies and counter melodies played by different sections of the jazz band. 40 Perhaps due to its rhythmic complexity, jazz became popular music for dancing, and White musicians soon began to imitate the music, often called swing. Popular dance bands consisted primarily of White musicians, who were more successful than the Black dance bands of the era.'4 ' White bands sterilized swing, making it overly formulaic. 4 2 Hence, Black jazz musicians embraced a new musical form.'4 3 The new musical form, modern jazz, provided a respite from the formulaic big band sound. Also called be-bop, during the 1940s modern jazz "transformed jazz into a modern art form."4 4 Younger generations of jazz musicians, such as Dizzy Gillespie, Thelonious Monk, Charlie Parker, John Coltrane, and Miles Davis, began to experiment with a new style of jazz improvisation, in which musicians played a greater range and combination of notes with complex rhythms and harmonies and irregular phrasing, all of which distinguished the music from standard jazz arrangements. 4 5 Dizzy Gillespie explained the be-bop composition style, revealing a method of composition not unlike the spirituals before it or hip-hop music that followed, by saying: We'd take the chord structures of various standard and pop tunes and create new chords, melodies, and songs from them. We ... added substitute chords to songs like Night and Day, How High the Moon. When we borrowed from a standard, we added and substituted so many chords that most people didn't know what song we really were playing."' The bop style migrated from instruments to vocals. "Scat" singers, such as Ella Fitzgerald and Betty Carter, improvised solos in a style reminiscent of musical instruments. 147 The modern jazz style, which centered on improvisation, greatly suffered because of its incompatibility with copyright protection. Improvisation, or simultaneous composition and performance, was not protected due to the fact that such jazz improvisations were not written down in musical notation-nor were they prevalently recorded.148 This lack of copyright protection contributed to the dearth of jazz recordings. Copyright law did not protect this art form because it did not provide for the fact that jazz improvisation is essentially a live musical phenomenon that is difficult to convert to standard musical notation. Regardless of this difficulty, under the 1909 Act, filing a valid copyright with the Copyright Office required a copy of a musical work in standard musical notation. 49

"We thought sampling was just another way of arranging sounds.Just like a musician would take the sounds off of an instrument and arrange them their own particular way ... [W]e had to change our whole style. "' In this quote, Chuck D expresses the frustrations he and his rap group, Public Enemy, experienced in the early 1990s when trying to create music for their new album. Public Enemy created a new sound on their previous records with the aid of music sampling, a fairly new practice in which musical artists incorporated "samples" of sound recordings from other musical works. This technique, in utilizing musical sounds of the past, created whole new works of musical collage. Public Enemy's creative process has been described as "a songcraft from chipped flecks of near forgotten soul gold. [A] guitar vamp from Funkadelic, a moan from Sly, a growl abducted from Bobby Byrd aren't rhythmically spliced in but melodically sequenced in colorful narratives. Think of Romare Bearden."2 When major record companies became conscious of rap's musical sampling phenomenon, they began charging prohibitive prices for the use of sound recordings they owned.' As a result, Public Enemy suffered artistically as their style of simultaneously sampling a multitude of different sound recordings finally became too expensive under this new regime. As a consequence, Public Enemy's later records utilized fewer samples.4 Public Enemy represents only one of the many Black performers and musicians that have been affected by a copyright law that is structurally incompatible with their creative process. The Black musical tradition works in a "trope of revision," that is, it is a highly creative tradition that builds and improves upon the music within its community.5 Copyright's confines do not reward this specific type of composition, however, since it rewards musical works of minimum creativity, minimum originality, and those works fixed in a "tangible medium of expression., 6 Moreover, copyright acts to the detriment of those who create new works out of the old by granting the author of the original work a monopoly on the creation of such "derivative" works. Hence, the modern day Public Enemy resembles the frustrated blues singer of the 1930s who stopped performing because he could not earn a livable wage for his work, or the stymied early R&B singer who could not produce and promote his hits fast enough to compete with the rock'n' roll imitation of his own work. The body of copyright law, with its vast revisions and amendments, was originally intended to encourage creativity and protect creators' work. Yet the Black musical idiom has been and continues to be excluded from such benefits because it does not fit into copyright law's construction of ownership and composition. Copyright's requirements have stood in the way of Black musicians' integrity as artists and their economic reward, since copyright law has historically granted a limited ownership to those who can conform a musical work into standard musical notation. Copyright's notions of authorship and composition undermine the Black musical customs of (1) community composition, as exemplified by oral tradition and call-and-response; (2) rhythmic and musical complexity; and (3) improvisation The combination of this cultural clash and America's history of racism has prevented Blacks from receiving recognition for their musical contributions or copyright's promises of compensation. Additionally, by failing to incorporate the Black musical idiom, copyright law heightens Black musicians' vulnerability to exploitation in a social milieu already accustomed to exploiting Black labor. The stories of stolen song credits, unconscionable contracts, and unpaid royalties, though numerous, are not the primary focus of this Note. However, such circumstances added to the already burdensome plight of the Black musician who tried to maneuver in a copyright regime that was not adaptive to his cultural musical idiom. This Note contends that the American copyright regime's failure to incorporate the Black musical creative process has devastated the integrity and economic potential of generations of Black musicians. This Note begins with a discussion of copyright law and then examines Black musical traditions and how they have conflicted with American copyright law through the years. Part I explains the history of American copyright law and its theoretical underpinnings. Part II relates common Black musical traditions in more detail. Part III illustrates how the foundations of Black musical traditions can be found in Negro Spirituals. Part IV outlines the notion of Black music as it evolved in ragtime. Part V describes how copyright undermined the traditions of blues, jazz, and R&B. Part VI explains how rock 'n' roll's prominence embodied copyright's clash with the Black musical tradition. Part VII portrays the history of the hip-hop musical phenomenon and illustrates how copyright's negative treatment of digital sampling continues to denigrate the Black musical tradition. PartVIII discusses the need for a more culturally inclusive copyright regime. Part IX concludes the Note by discussing the importance and benefits of amending the current copyright laws.

At their best, highly innovative artists utilize or refer to the best elements of different musical traditions in order to create totally new musical genres and sounds. Blues scholar Peter Guralnick expresses this sentiment about bluesman Robert Johnson: "What made his work unique ... was an uncommon ability to synthesize these influences and a poetic sensibility which drew its inspiration from highly disparate sources and transformed them into a startling new blend., 21' At their worst, artists rehash what has come before, they do not add any innovative elements, and they dilute the original creative work. Copyright law, as befitting its history of rewarding abusive imitators,2 " has failed to accommodate innovative improvisers and users of digital samples-which, in essence, represents a lack of regard for the Black musical idiom. Black musicians' creative processes have been undermined by a regime that rewards limited creativity and punishes those who push musical artistry to new levels."' Consequently, many Black artists have either left the music industry for another occupation or entirely altered their method of creativity due to lack of financial reward and legal marginalization. 8 B. Incorporation of Moral Rights In contrast to American copyright law, many European countries broadened their copyright law to include moral rights as well as eco- 219 nomic ones. Moral rights still recognize an author's work as an economic interest, but they also treat an author's work as a natural right 220 hmrlrgt a nld h and extension of her personality. Such moral rights may include the rights of paternity, attribution, and integrity.221 The incorporation of moral theory into American copyright law may help create a copyright regime more harmonious with the Black musical tradition.2 22 Due to the restrictive copyright regime, Black musicians have historically struggled to reap the rewards of their labor, to contribute to society, and to protect the integrity of their creations as extensions of their personalities. Other regions of the world, such as Western Europe, Africa, and Asia, respect moral theory.223 Moral law incorporates notions of paternity, attribution, and integrity. Perhaps paternity and attribution, which protect the right to be known as an author and the right to prevent others from being named the author of a work, '2' respectively, would have assisted Black musicians who created music in the blues, ragtime, and rock 'n' roll eras and whose creative efforts were frustrated by the rampant imitation and appropriation of their works by White artists, record labels, and publishers. Legislators are best able to consider these ideological concepts and then evaluate issues of effective administration and feasibility of execution. However, embracing these concepts generally would certainly provide recognition for previously marginalized creative processes. Though copyright law has greatly differed throughout the generations, the tensions between the Black musical idiom and copyright law are still intact. Blacks working in the Black musical tradition still struggle to comply with the current copyright regimes' requirements while maintaining their artistic integrity. Current copyright law is detrimental to creativity as well as to society. By limiting musicians' ability to create music, copyright law also deprives society of the benefits that would be gained from appreciating this music. Furthermore, copyright law's inability to address Black musical traditions also negatively impacts society because it hearkens back to the United States' history of racism and lasting paradigms of Black inferiority. Copyright has historically failed to preserve or acknowledge the integrity of important cultural creative processes, and legislators should consider expanding the framework. Though incorporating the Black musical idiom into copyright law cannot compensate Black musicians of the past, such incorporation would benefit Black musicians currently working in the Black musical tradition. Additionally, a broader copyright regime would benefit other marginalized communities, such as poorer or new musicians, who may otherwise be unable to afford the expense of sampling under current copyright law, or who may be unable to effectively fight costly litigation that could result from claims of illegal sampling. It is imperative to amend copyright law, possibly through the incorporation of moral considerations, not only so that artists can be fully compensated for their work, but also so that society can fully benefit from their music and the knowledge that our legal system is more inclusive. Legislators must begin to recognize the extent to which the law shapes an artist's experience and the impact that it has on the rest of society.