Copyright law does not foster innovation but instead the imitation of Black art. Foundational Black artists for all genres of American have been degraded and devalued through predatory contracts and even when they’re free that just mean someone white is going to take it and gain the credit.

At its core, IP in America “is understood almost exclusively as being about incentives.”27 The history of blacks in the arts is one of unparalleled innovation and creativity, especially in the realm of music and dance. There has always been “an overwhelming prevalence of black innovators in jazz,”28 as well as blues, ragtime, rock-and-roll, and today’s hip-hop music. The history of black artists within U.S. IP law, however, has been one of appropriation, degradation, and devaluation beginning with the creation of the nation until the 1950s and ’60s. In the arena of music, there is no need to assume mass appropriation and disparate treatment of black composers and performers. Time after time, foundational artists who developed ragtime, blues, and jazz found their copyrights divested, and through inequitable contracts, their earnings pilfered.29 I argued elsewhere that for a long period of U.S. history, the work of black blues artists was essentially dedicated to the public domain.30 The public domain “can most broadly be defined as ‘material that is unprotected by intellectual property rights, either as a whole or in a particular context, and is thus “free” for all to use.’”31

Similarly, it has been argued that with respect to black artists “copyright law . . . was created without deference to the interests of large segments of society,” including women and minorities.32 Indeed, my previous work demonstrates that five copyright structures disadvantaged black cultural production.

First, the idea/expression dichotomy of copyright law prohibits copyright protection for raw ideas, and protects only expression of ideas. I contend that this standard provided less protection to innovative black composers, whose ground-breaking work was imitated so widely that it became the “idea” and thus impossible to protect.

Second, copyright’s fixation standard provides that copyright protection extends only to a work that is “fixed” in a tangible medium of expression.33 However, a key component of black cultural production is improvisation. As a result, fixation deeply disadvantages African-American modes of cultural production, which are derived from an oral tradition and communal standards.34

Third, copyright law sets forth a minimal standard of originality, which does not protect innovation, and in fact encourages imitation. Fourth, copyright formalities, until 1976, put copyright protection out of reach of the illiterate or semi-literate creators of the blues.35 Finally, there is a general absence of moral rights protection, which protects against harms to authorial dignity. The fact that black artists continued to create and innovate, even in the face of diminished economic incentives, poses a challenge to copyright policy, which dictates that copyright “is fundamentally about providing a balance of incentives for authors.”36 This phenomenon surely gives weight to the notion that economic incentives alone are not the sole motivator of creative output.

Larry Lessig, a leading IP scholar, asserted that the “record industry was born of . . . piracy.”37 Lessig contends that the “law governing recordings gives artists less . . . by giving artists a weaker right than it otherwise gives creative authors.”38 Lessig was referring to the compulsory license provision of the 1909 Copyright Act, which permits anyone to re-record a composition that has been released to the public via sound recording.39

However, beneath Professor Lessig’s analysis lies a much more insidious form of piracy. The early music industry was built on the back of black cultural production from the era of slave songs and spirituals to the period of black-face minstrelsy—America’s most popular and profitable form of entertainment from 1800 to the end of the last century.40 Minstrelsy “was the first truly American contribution to the history of stage entertainment, and it owed its very existence to the Negro [sic].”41 Minstrelsy defamed blacks, and other minorities, in stereotypical and derogatory ways.42

Then came ragtime and blues, which single-handedly carried the recording industry from the 1920s until the Great Depression. Although ragtime music was innovated by black composers such as Scott Joplin, and served as “the most popular ‘pop’ style [for twenty years],” it was white composers such as Irving Berlin who reaped the greatest financial rewards.43 The line between permissible “borrowing” and impermissible appropriation may be dim at times, but there is strong evidence that the works of black artists were plagiarized and appropriated extensively.44 Furthermore, the routine stereotyping that occurred concurrently with copyright appropriation negatively impacted black artists’ personality rights. It has been said that the creative process “implicates the honor, dignity, and artistic spirit of the author in a fundamentally personal way.”45 From this perspective, black artists also were subject to deprivation of the moral rights of integrity and attribution.

With some irony, one of the most successful white bands of the early twentieth century, the Original Dixieland Jazz Band, took New Orleans Negro music and reduced it to a “simplified formula . . . the kind of compressed, rigid format that could appeal to a mass audience.”46 This cultural appropriation of black art set a long-standing pattern wherein “large financial gains were made by white musicians playing black music to essentially white audiences.”47

Similar patterns of innovation by blacks, followed by imitation by whites, preceded rock-and-roll, a derivation of the blues, and on to today’s hip-hop, where white rappers such as Vanilla Ice and more recently Eminem gross top sales.48 It has been said that the “exploitation of the author is coded deep within the copyright system.”49 By any measurement, the treatment of black artists vis-à-vis white artists is striking in the nonreciprocal nature of the appropriation, and the imposition of vicious dignitary harm to blacks as a group through negative cultural stereotyping.