The legal rubric used to categorize, protect and enforce intellectual property rights is rooted in white supremacy – critical race theory forces a confrontation both the ways Black creatives are appropriated and distorted AND the investment in antiblack stereotypes/tropes as works of “intellectual property”

Kevin Green is a Professor of Law, Southwestern Law School. Greene, K.J. "Intellectual Property at the Intersection of Race and Gender: Lady Sings the Blues." American University Journal of Gender, Social Policy & the Law. 16, no. 3 (2008): 365-385. JrH24

Critical race theory is not a unified construct, but it does set forth four core tenets.7 First, it posits that “race and racism are endemic to the American normative order.”8 Second, it posits that legal structures are “part of the social fabric . . . [which] constructs and produces race and race relations . . . [in support of] white supremacy.”9 Third, it contends that the construct of “colorblindness” in legal jurisprudence “ignores and cements the racial caste system constructed in part by law,” and thus perpetuates inequality for subordinated groups.10 Finally, CRT proponents advocate that “[legal scholars should be] working toward a norm of ‘racial equality’ where different groups will not continue to suffer the oppression and subordination they have suffered.”11 CRT can also be defined via its opposition to at least three entrenched, mainstream beliefs about racial justice . . . [one,] that blindness to race will eliminate racism . . . [two,] that racism is a matter of individuals, not systems . . . [and three,] that one can fight racism without . . . attention to sexism, homophobia, economic exploitation, and other forms of injustice and oppression.12 Further, CRT advocates reject the use of “neutral” accounts of legal decision-making and focus on the perspectives of subordinated peoples, i.e., “voices from the bottom” of society.13 Finally, CRT embraces the use of story-telling “to expose discrimination and illuminate how the law often fails to account for the voices of outsiders.”14 CRT analysis has been applied to many diverse areas of law, including antidiscrimination law, law and economics, and taxation.15 CRT has spawned numerous theories of subordination within the law, including Latina and Latino Critical Theory, Asian-American critical legal theory, and Critical Race Feminism.16 Not surprisingly, CRT and its analogs have come under harsh attack from conservatives in the legal academy.17 This is expected since “conservative critics have long denounced feminism, as well as other civil rights movements, for promoting victimization.”18 Given the breadth of its subject matter, it is unsurprising that divisions over analytical approaches exist in the CRT movement.19 A. Intellectual Property, Innovation, and African-Americans CRT analysis has “provided important insights into the ways in which anti-discrimination law has not only failed to address, but [has] further entrenched, ideological and thus material forms of discrimination.”20 An insight that CRT offers to IP law is that its use in society and legal scholarship, like antidiscrimination law, also may have served to entrench material forms of discrimination. While individual black artists without question have benefited from the IP system, the economic effects of IP deprivation on the black community have been devastating. Intellectual property today is perhaps the preeminent business asset.21 Analysts recognize that blacks and other minorities in a market economy “cannot participate as equals unless they too can deploy the private power generated by ownership and control substantial business assets.”22 The three core protections of intellectual property at the federal level are copyright, patent, and trademark law.23 Copyright law protects creative output of authors, such as music composers, writers, and choreographers, by granting limited property rights in their creations. Patent law provides legal protection to inventors of useful inventions. Trademark law prohibits the use of a valid trademark by third parties where the unauthorized use is likely to cause consumer confusion in the marketplace. In the past, few legal scholars examined race or gender in the context of IP. It is only in recent years that scholarship exploring IP has examined it in the context of social and historical inequality. Only recently have scholars, such as Professor Sunder, recognized that IP serves not merely as a legal doctrine allocating rights, but “as a legal vehicle for facilitating (or thwarting) recognition of diverse contributors to social discourse.”24 IP scholars such as Keith Aoki and Shubha Ghosh are now validating the phenomena of the similar divestment of patent protection for black inventors.25 My scholarship was among the first to show how the structure of copyright law, and the phenomena of racial segregation and discrimination, impacted the cultural production of African-Americans, and how the racially neutral construct of IP has adversely impacted African- American artists.26 The long omission of an analysis of race in the IP context is glaring given the tremendous innovative contributions of black authors and inventors to society, and the salience of race “branding” in trademark law. The treatment of blacks in the IP system has been characterized by two dynamics that have import for racial and distributive justice. First, black authors and inventors have found their works routinely appropriated and divested. Second, appropriated and distorted creative works protected by copyright, and trade symbols and imagery protected by trademark, have promoted derogatory racial stereotypes that facilitate racial subordination.