IP law sustains and cements racial inequalities by maintaining a veil of race neutrality which masks its racist origins and naturalizes knowledge as white property.

Unsurprisingly, laws, policies, and discourses that “did not see race” did not remedy the persistent structural inequalities that had resulted from centuries of racism and dispossession. They only created an appearance of equality that operated as a perpetual alibi to claims of race discrimination. In part, as Jodi Melamed argues, racial liberalism refers to the transition from “mesmerizing narratives of the white man’s burden”2 that informed openly racist and colonial policymaking to “liberal antiracisms—of reform, of colorblindness, of diversity in a postracial world—that explained (away) the inequalities of a still-racialized capitalism”3 as official state policy. No longer did the management of race entail grappling with structural racism. Instead, anti-racism required citizens, policymakers, and lawmakers to adopt colorblind universalism, a form of thinking that identified racism and the effects of racism as individual matters, not structural ones, and emphasized individual rights and formal equality as the paths to racial justice. The effect of the turn toward racial liberalism was to protect white supremacy in novel and less-overt ways, often through the mobilization of coded language that could not be easily discredited. Racial liberalism “instantiated a new worldwide racial project that completely supplemented and displaced its predecessor: a formally anti-racist, liberal-capitalist modernity articulated under conditions of US global ascendancy.”4 Nikhil Pal Singh’s understanding of race in the world of racial liberalism, as a set of “historic repertoires and cultural and signifying systems that stigmatize and depreciate one form of humanity for the purposes of another’s health, development, safety, profit or pleasure,”5 gestures toward the importance of racial scripts in sustaining racial inequality even in a world of purported colorblind universalism. Even as the United States moved toward desegregation and equality, national conservatism around race and capitalism entrenched systematic oppression, albeit in ways that were less overt than in previous eras. This chapter examines how intellectual property law continued to construct racialized understandings of creatorship through the language of citizenship and personhood in the post–civil rights era. Intellectual property rhetorics were not immune from the ideologies and discourses of racial liberalism—in fact, the former and latter were deeply intertwined. After the civil rights movement, copyright, trademark, and patent law, which had in previous eras formally excluded people of color from protection, modernized and coproduced age-old racial scripts alongside racially liberalized but persistently white discourses of citizenship and nation. Yet the political, cultural, and doctrinal language of intellectual property law often escaped scrutiny. Instead, it continued to normalize white knowledge production at the expense of the creatorship of people of color and used purportedly race neutral legal language to maintain systems of racial capitalism. The race liberal creator was a white male genius—a Romantic creator modernized through the language of racial liberalism—whose success was deserved because of his commitment to hard work, ingenuity, and creativity. Race liberal creatorship operated as a tool for fueling purportedly colorblind American nationalism while demonizing people of color and eliding explicit engagement with the debates about racial equality, including those that followed the collapse of Johnson’s Great Society and the assassinations of Dr. Martin Luther King Jr. and Robert Kennedy. From the 1960s on, creatorship evolved into an increasingly important imagined engine for national growth, one that also stoked the fires of economic protectionism, xenophobic nationalism, military adventurism, and neocolonial extraction. Copyright, trademark, and patent law evolved not in the spirit of radical equality espoused by the civil rights movement but from a perpetrator perspective, which protected white property interests in knowledge while disciplining people of color for their creatorship. Three sets of racial scripts organized intellectual property law and racial feelings about the role of copyrighted works, trademarks, and inventions in the race liberal era. First, developing understandings of expertise as the primary domain of Western science updated familiar, raced conceptions of human progress and cemented understandings of knowledge as white property. While such negotiations unfolded primarily in the area of patent law, the Sampling Wars of the 1990s also normalized whiteness and the performance of white practices of knowledge making as central to expertise and thus property ownership. Second, the criminalization of non-white creatorship—through anti-Black tropes of hip hop artists as obscene, thieving copyright thugs—mobilized not only familiar racial scripts as a means of discrediting people of color creatorship but also anxieties about crime, economic growth, and jobs in America. This process invoked raced definitions of true imagination that had run through earlier copyright jurisprudence. Third, white resentment about racial mixing and power persisted after the Supreme Court’s decision in Loving v. Virginia (1967), which found antimiscegenation statutes to be unconstitutional. These anxieties about racial purity manifested in the context of trademark law, specifically the periodic embrace of trademark dilution. The resurgence of jurisprudence and legislation around trademark tarnishment and trademark blurring, subsets of trademark dilution, refashioned the consumer gaze to reflect national sentiments about white marginalization, specifically via economic language about expansive brand protection. In these ways, copyrights, patents, and trademarks continued to operate as sites for the projection and production of anxieties about the state of the nation and its (white) citizenry, just as they had in past eras. Indeed, the presumption that the racial ideologies of knowledge production somehow shifted is counterintuitive, given the persistence of racist ideologies in other areas of culture and politics. Reading intellectual property citizenship through the lens of racial liberalism is thus a productive means of rendering these increasingly hidden racial investments visible and identifying the contours of the ideal race liberal creator.