Copyright law is synonymous with the racial contract – the logic of fair use masks white domination and invests whiteness as a destabilizer in racial justice

Anjali Vats, “The Racial Politics of Fair Use Fetishism”, LSU Law Journal for Social Justice and Policy, 2022, https://digitalcommons.law.lsu.edu/cgi/viewcontent.cgi?article=1007&context=jsjp

Some might wonder why an article critiquing fair use as a tool of racial justice is necessary when so few scholars and activists make the explicit case for using the affirmative defense. From where I sit, the reason is structural. Continuing to put faith in fair use to support artists of color diminishes the value of their artistic works as standalone products of brilliance, especially given that fair use still tends to disproportionately benefit corporate entities over individual ones. Rosenblatt writes that “the framework of fair use is not a free-for-all.”51 I build on this observation about the limitations of fair use by showing how its mere rhetorical invocation can operate as a tool of racial and (post)colonial domination and distraction. At the heart of this claim are two arguments: that intensely focusing on fair use suggests that it can solve more problems of selfexpression than it actually can, particularly vis-à-vis race, and that it is more than a fantasy script for creators of color. Embracing fair use as a concept without attending to its potentially detrimental impacts on cultural understandings of Black brilliance may indeed create more problems for the long term protection of innovative artistic works than it solves. Rosenblatt’s Bakhtinian reading of fair use gets at some of the implicit hierarchy established by fair use, e.g. that “an ‘original’ creator gets not only enhanced rights, but also enhanced stability.”52 David Hesmondhalgh’s examination of Moby’s Play, an album sonically marked by the sampling of audio recordings collected by folklorist Alan Lomax, suggests a similar argument in , highlighting how fair use necessarily cuts both ways by making it easier for white musicians to engage in sampling.53 A CRTIP approach to thinking about fair use can sharpen conversations around copyright and infringement, as well as advance goals of racial justice. Such an approach also likely requires divesting from the doctrine and its remedial tendencies in favor of more radical interventions that center epistemologically inclusive notions of protectability, originality, and infringement. .

Racial injustice in the music industry, as Rosenblatt demonstrates with precision in her recent work, is distinct from fair use in other contexts, partly because hip hop itself is so closely associated with Blackness.54 Copyright law, as a tool of enforcing antiblack racism and exploitation, is part of what Michel Foucault would call a “racial episteme,”55 i.e. a framework through which race is constructed and imagined in America. Countless scholars have traced many ways that Black people have been structurally excluded from copyright law, including: racialized citizenship,56 musical segregation,57 problematic (white) co-authorship, unequal contracts,59 property theft,60 and legal exclusion.61 Matthew Morrison goes back a step further to contend that the architecture of copyright law itself was built through the legal and performative dispossession of Black artists, through a practice, epistemology, and hermeneutic he calls “Blacksound”. As he writes, “mostly white music industrialists capitalized upon the (unrecognized) performance property of black Americans, both in and out of blackface…this process helped to define and liberate imagined visions of whiteness through black popular aesthetics scripted into sheet music and other tangible forms subject to legal protection.”62 He shows, through meticulously assembled historical evidence, that certain particularities of the copyright regime, e.g. the nonprotection of sound recordings until the 1970s, emerged from the need and desire of sheet music publishers and music producers to commodify Black music, in appropriative ways that were palatable to white people.

The consistency with which copyright law has been mobilized against people of color, particularly Black people, as a disciplinary and extractive mechanism, as well as the conservativeness with which courts have used it as a liberatory tool suggest the need for a critique of the white liberalism underlying fair use. I want to highlight three major ways that fair use hinders racial justice instead of facilitating progress toward it. These three arguments draw on the critiques of facial race neutrality that Critical Race Theory scholars such Derrick Bell, Cheryl Harris, and Kimberlé Crenshaw have made, as applied to intellectual property in the growing area of Critical Race Intellectual Property (“CRTIP”).63 In essence, they point to how even laws that appear equal at first glance can elide the histories of whiteness that led to their creation in the first place and their disparate impacts on people of color.64 From this vantage point, fair use in all its applications can be read as a minimally remedial means of addressing the minimization of Black brilliance instead of a path to racial justice.65 First, the commitment to fair use is embedded within the very strand of white liberal reformism that critical race theorists such as Bell critique, as opposed to a full embrace of Black humanity and Black epistemologies. Second, judges, steeped in Lockean understandings of (intellectual) property rights, have developed a narrow view of “transformativeness” that reinforces racially exclusionary notions of authorship and innovation, i.e. property rights vest in the “original” but rarely the “copy”. Finally, fair use is structurally constructed as a post facto rejoinder, an affirmative defense in the face of claims of copyright infringement. This leaves the power to frame the conversation in the hands of more powerful actors. As I will demonstrate in the last section, contesting the very purpose of the Copyright Act of 1976, by recontextualizing the arguments made by the Framers of the Constitution through the lens of CRTIP is a preferable alternative to undoing the racial harms of copyright law than continuing to invest in the doctrine of fair use.

To say that the desire to defend fair use reflects white liberalism is to draw on the work of ardent critics of Euro-American political theory, such as Charles Mills. Mills uses the term “racial contract”66 to describe the tacit political and civic agreement in Euro-American nations to center, value, and reward whiteness. This argument is a more philosophically grounded version of CRT’s critiques of white liberalism, that focuses on the organization of civil society under Western rights based modes of governance. Cheryl Harris, for instance, explains that “[w]hiteness as property has taken on more subtle forms, but retains its core characteristic – the legal legitimation of expectations of power and control that enshrine the status quo as a neutral baseline, while masking the maintenance of white privilege and domination.”67 She makes this argument by tracing how property and whiteness have coevolved since Emancipation, in the service of white supremacy. The same argument can be made of fair use, a doctrine that subordinates Black brilliance to the whims of a white supremacist copyright system and a federal judiciary that reflects EuroAmerican notions of race and creatorship. Just as the shift from US practices of chattel slavery to claims of reverse racism allowed white people to maintain property rights in whiteness itself, the shift from US practices of formal exclusion to claims of outright theft allowed white people to maintain intellectual property rights in whiteness itself. For instance, Grand Upright Music makes implicit claims of “theft” based on the premise that, by virtue of their whiteness, musicians such as Gilbert O’Sullivan are entitled to a broad swath of copyright protection that extends to any use of their music. As countless historians of music and copyright have shown, this presumption does not cut both ways, as the work of Black musicians was not treated with equal ownership and dignity. That Grand Upright Music was the first attempt to criminalize sampling, a mundane and common practice in the music industry, illustrates the evolution of the racial politics that led to the restructuring of whiteness as intellectual property