Copyright laws’ limited inclusion of Black scholarship is based on a method to uphold European culture

Central to my reading of The Wind Done Gone and Suntrust as rhetorical disidentification is the concept of parody. “[P]arody,” Henry Louis Gates, Jr. writes in his Declaration in Suntrust, “is at the heart of African American expression, because it is a creative mechanism for the exercise of political speech, sentiment, and commentary on the part of people who feel themselves oppressed or maligned and wish to protest that condition of oppression or misrepresentation.”273 Integral to parody’s importance in African American expression is the story of the trickster. In The Signifying Monkey, Gates traces the rich history of Esu Elegbara, the Yoruban signifying monkey that mediates between humans and gods, identifying a recurrent trope of signifyin(g) throughout African cultures and African American literature. The rhetorical and performative manifestations of the figure’s prank-playing—including satire, parody, irony, ambiguity, and magic, form the backbone of the preservation of African American identity in the United States as well as a means of resisting dominant culture.274 Appropriative practices such as parody serve to decolonize white linguistic and representational structures, opening space for the use of trickery, lying, and indirect discourse as tools of persuasion and contestation in the face of oppressive conditions.275 Thus, the practice of parody is important not only as a recurrent theme in African American literature—it also operates as a means of preserving fragmented and transplanted African culture in the New World after the rise of slavery.276 Read in this cultural context, parody becomes a means of deconstructing dominant discourses. Speaking in the context of the rhetorical tradition, Hariman notes the parody’s counterhegemonic power. Parody is important for the maintenance of democratic culture, traced through the Greeks. This deconstruction of dominant culture through parodic rewriting occurs through the process of juxtaposition: “[w]hen language is placed beside itself, limits are exposed. What had seemed to be serious is in fact foolish, and likewise the powerful is shown to be vulnerable, the unchangeable contingent, the enchanting dangerous.”277 In the context of copyright law, the lineages of parody as African American and Western cultural practice collide. While copyright law protects parody as a means of producing original and non-infringing creative works, it is also works to “secure the logic of the European art/culture system”278 through strict regulation of parody. Though Hariman is correct that parody diversifies the public domain, it does so within a particular historical context that, as he shows, is derived through liberal democratic practice. In contemporary copyright contexts, parodies have been found to be fair use because they are “transformative” in character when considered under the first factor of copyright law’s four-part fair use test.279 In the seminal case of Campbell v. Acuff Rose Music, the Supreme Court explained that “[f]or the purposes of copyright law, the nub of the definitions, and the heart of any parodist’s claim to quote from existing material, is the use of some elements of a prior author’s composition to create a new one that, at least in part, comments on the author’s works.”280 As Greene notes, however, copyright law has been constructed to actively exclude African American practices of signifyin(g), creating structural barriers to the recognition of culturally specific forms of creativity, particularly with respect to musical and literary works.281 Not only has the definition of creativity as an act of individual genius historically been a barrier to the protection of African American works under copyright, as in the context of jazz, but so too is the understanding of the author as an individual who produces something new.282 Creativity, for the purposes of copyright law, is traditionally understood to exclude precisely the types of signifyin(g) that Gates identifies.