Permutation do both – it’s best because it contests hegemony on its own terms and galvanizes a lightning rod for future resistance

Anjali Vats, “The Color of Creatorship”, Stanford University Press, Pages 156-157, 2020

The three examples discussed here explore how individuals and institutions perform race and ownership so as to exploit the legal porosity in intellectual property law, race, citizenship, national identity, and personhood. The first example considers how Prince Rogers Nelson, when he changed his name to the Love Symbol, eroded the music industry’s monopoly over the identities and (intellectual) property rights of artists of color. While Prince explicitly confronted histories of anti-Blackness in the United States in many ways, the symbolic significance of his name change and his fight to own the copyright to his songs continues to influence generations of artists across racial identities, notably by encouraging them to own their music.

The second example considers how, in response to yoga piracy, Indians and Indian Americans produced new vernacular that aided in decolonizing intellectual property law. The Indian government, which took up this new vernacular, built the Traditional Knowledge Digital Library (TKDL), a digital infrastructure that literally intervenes in the workings of intellectual property law by preventing the ownership of traditional knowledge through online databasing.

The final example considers how Marshawn Lynch’s ownership of (intellectual) property rights in his body, specifically through the Beastmode® clothing line, erodes racial capitalism and the racial scripts around Black bestiality. Lynch functionally confronts traditional modes of claiming whiteness as property while making space for Blackness as property. Each of these cases demonstrates the existence of liminal spaces from which to remake racial scripts and racial feelings about creatorship/infringement through language and practice. Moreover, they do so from different levels of discursive engagement, including the individual, the institutional, the national, and the international.

Halbert writes: “What the language of intellectual property masks is the global political economy of highly concentrated copyright and patent ownership where corporations, not people, are the beneficiaries of the system . . . resistance to the expanding idea of property is developing as people began to reimagine cultural work outside the language of property and rights.”9 Prince, Indians and Indian Americans, the Indian government, and Lynch engage in projects that fit that description, by remaking the disciplinary functions of (intellectual) property through individual and institutional discourses and performances. Such resistive endeavors, whether intentional or not, represent productive moments of hegemonic contestation through which law’s racebased suppositions can shift, particularly as they are taken up more broadly in public cultural spaces. They also serve as important lightning rods for rewriting racial scripts and moving racial feelings, in part by making them legible and intentional instead of invisible and libidinal.

These examples also set the stage for thinking about how lawyers and activists who are invested in anti-racist and anti-colonial struggles might orient themselves toward intellectual property law. Thinking about and remaking legislation, legal doctrine, and precedent are certainly important. But so too is performative resistance within the confines of existing practice. Being conscious of the racial histories of intellectual property law and committing to progressive racial ethics can drive considerable change in the direction of equity while law is being reimagined.