Intellectual property rights are underpinned by narratives of citizenship, Americanness, and who possesses the creative capacity to make intellectual property.

As Jessica Silbey contends, intellectual property’s narratives are really origin stories about the nation and its people, used to define and negotiate the boundaries of Americanness itself. 15 Collective myths around intellectual property citizenship reinforce and update Euro-American ideals of Romantic authorship/Romantic inventorship, 16 rendering them legible for the cultural politics of the era through evolving rhetorical constructions of hard work, innovation, ingenuity, and ruggedness. In the American imaginary, authors are creatives who produce valuable cultural works; inventors are geniuses who transform flashes of brilliance into practical inventions; trademark owners are producers of goods who protect hard-earned authenticity and quality. 17 Intellectual property citizenship is a mythical ideal defined in part through its relation to these characteristics of individuals who attain the American Dream. Further, it helps to show that intellectual property is a racialized concept, which obscures whiteness and racial power through the mobilization of national feelings of hope, optimism, and pride, as well as fear, anxiety, and protectiveness.

Silbey emphasizes the qualities of Americanness that underlie and animate intellectual property in a mutually constitutive bond. However, she does not go so far as to unpack the racial meaning of such characteristics. Embedded in understandings of Romantic creatorship are intersectionally inflected racial and colonial presuppositions about the value of white male knowledge and the value of people of color knowledge.18 Intellectual property law, as a rhetorical enterprise that shapes Americanness, also constitutes racial and colonial difference in ideological and material ways. Just as “[l] aw constructs race,”19 intellectual property law constructs race.20

Copyright, patent, and trademark law define race by and through their racialized understandings of creatorship/infringement, which are fundamentally linked to American conceptions of good citizenship/bad citizenship. In that sense, those court cases decided between the ratification of the Reconstruction Amendments and the civil rights movement that explicitly defined race in refusing to extend citizenship rights to certain groups of people of color, which Ian Haney López calls the Prerequisite Cases, implicitly haunt intellectual property law. 21 Their racist and exclusionary articulations of citizenship undergird historical and contemporary legal understandings of who possesses the capacity to make intellectual property, which is in turn a central driver of the racialized American economy. As a result, anxieties about race, nation, and citizenship developed in ways that were mutually constitutive with anxieties about knowledge production, labor, and economics. Though contemporary colorblind rhetoric suggests that intellectual property has been delinked from such racial decision making, I argue otherwise. Intellectual property is bound up with narratives of race, nation, and citizenship, as well as their attendant “structures of feeling,” in Raymond Williams’s parlance. 22 The relationship between intellectual property law and citizenship fuels understandings of creatorship that protect white interests in copyrights, patents, and trademarks.