Do you even know their names? The US intellectual property regime relies upon a system of antiblack exploitation that is evidence in every area of artistic expression and intellectual work. From #SayHerName to the ongoing refusal to cite Black Women artists in Hollywood, corporate conglomerates and legal maneuvers obscure the self-empowerment of Black and Indigenous artists and undermine Black agency at the constant expense of Black narratives, lives, and intervention in conversations on IP reform.

The history of the production of cultural property in the United States follows the same pattern as the history of the racial divide that inaugurated the founding of the Republic. The original U.S. Constitution excluded both black women and men from the blessings of liberty. Meanwhile, that same Constitution granted rights to authors and inventors in what is known as the Patent/Copyright Clause of Article I, Section 8.1 This clause laid the foundation for intellectual property (“IP”) rights that have become an economic juggernaut not only in the United States, but globally.2 IP rights are inextricably tied to cultural and scientific production, which influences all aspects of society. Thus, before the passage of the major civil rights amendments and acts, the provisions of Article I, Section 8 were unavailable to protect the cultural rights of early black Americans. Congress enacted laws mandating racial equality and effectively protecting the intellectual property rights of blacks in the arts and sciences only within the past few decades.3 This Article briefly explores how women artists, particularly black women, have been impacted by the IP system, and compares how both blacks and women have a shared commonality of treatment with indigenous peoples and their creative works. The treatment of blacks, women, and indigenous peoples in the IP system reflects the unfortunate narrative of exploitation, devaluation, and promotion of derogatory stereotypes that helped fuel oppression in the United States, and in the case of indigenous peoples, both here and abroad. The treatment of women blues artists in the IP system illustrates the racial and gendered nature of IP rights, and that IP has been central to racial subordination from both an economic and cultural standpoint. However, examining inequality in the IP context is not merely a backwards-looking narrative. Racial and gender dynamics offer unique insights that can guide reforms to the IP system with a view toward benefiting, in Derrick Bell’s words, the least-advantaged “faces at the bottom” of our society.4 Traditionally, IP scholarship and jurisprudence has not focused on race and gender inequality. However, these issues are receiving renewed attention in feminist scholarship and in critiques of existing power structures by those concerned with the treatment of people of color, women, and indigenous peoples in the international arena. Analytical inquiries that explore the rights of minorities, women, and indigenous peoples enhance the debate about IP reforms. Further, a focus on the least advantaged segments of society, such as blues women, shifts the debate to focus on the empowerment of artists who create, and not on empowerment of large conglomerates that control IP in the United States and abroad. Part I of this Article, briefly discusses the tenets of critical race theory to show that it can be useful in explaining how IP law has disadvantaged African-American artists and fostered their subordination. Part II explores how feminist critiques of IP benefit from examining the treatment of black women, using blues women of the 1920s as a focal point. Part III examines how the treatment of indigenous peoples parallels IP deprivations of blacks and women.