The plan’s expansion of copyright law serves as a cover for white plunder.

Karla Mari McKanders uses the phrase “tiered personhood”16 to describe the system in which the rights afforded to all individuals, regardless of citizenship status, are “bypassed . . . by defining certain groups as nonpersons based on differences between dominant and subordinate groups.”17 For instance, even when copyright law’s formal racial restrictions ended, the nation’s racist attitudes persisted. Jim Crow, which violently pushed back against the rights afforded by the Fourteenth Amendment, was only one manifestation of such tiered personhood and the systematic racial subordination that supported it.

Formal citizenship requirements for copyright registration eventually ended with the International Copyright Act of 1891, a statute that, in theory, extended copyright protection to all individuals in the United States.18 However, the International Copyright Act of 1891 neither ended the nation’s desire to associate American citizenship with whiteness nor prevented the de facto racial discrimination that followed from legal articulations of copyrightability. Lauren Berlant describes sentimental approaches to citizenship, which posit the citizen not as political subject but rather as “someone with attachments and intentions and pain capacities—for example, as a subject of feelings—who longs for what everybody is said to long for, a world that allows access to vague belonging, a sense of unanxious general social membership that ought to be protected by the institutions that bind power to ordinary life.”19

In Berlant’s reading, the formal legal language of citizenship, which scholars and lawyers often emphasize as the site of rights and entitlements, can be separated from its informal rhetorical and affective ones. Doing this shows how exclusion works through the association of some bodies with nation and citizenship and the exclusion of other bodies from those same categories. As Sara Ahmed puts it, shared feelings are what bring individuals together and “bind the imagined white subject and nation together.”20 Shared feelings among white men about how intellectual property law should work and who should benefit from its legal determinations were wrapped up with racial ideals of citizenship and national identity, in a manner that coalesced to produce apparently race neutral legal decisions and economic policies.

More specifically, the concept of true imagination operated as a vehicle for making raced judgments about the nature of creativity. Even when authors of color won their copyright cases, they were doing so through a doctrinal lens implicated by citizenship that prefigured them as lacking creative capacity. The revelation that true imagination became a tool for excluding Black people from access to authorship is well established.21 The connection between that phrase and citizenship, however, is far less thought out.

Copyright’s protectionist tendencies can be read as moves to police belonging, particularly through xenophobic attachment to whiteness. Yuengling v. Schile (1882), a copyright case that contemplated the boundaries of domestic protections for foreign authors suing in U.S. courts, articulated the prevailing nationalist and protectionist aims of using copyright law to protect (white) domestic industry. The decision noted that “the prohibition against an extension of the copyright to alien authors was as broad as the section authorizing copyright in favor of resident authors,”22 thus reading the denial of copyright protection to foreign authors broadly and in a manner consistent with the sentiments of the young nation. In shoring up the nation’s protectionist posture in the area of copyright law, Yuengling also reaffirmed that intellectual property law could and should be motivated by a desire to unify white men in the nation against the racial and economic threats of immigrants, particularly of color.

Michael Perelman and Lateef Mtima note that protectionist motives were evident across areas of intellectual property law, as were understandings that white plunder was an acceptable means of securing Manifest Destiny, global power, economic might, and domestic labor.23 Mtima further contextualizes this argument vis-à-vis national identity, writing “America’s leaders and populace were not overly concerned with the trivialities of foreign rights in intangible property, especially if such rights stood in the way of nation building . . . the misappropriation of a few stories and songs was hardly an affront to the national conscience.”24 In a time period when the Chinese were identified as part of a barbaric, machinistic, “Oriental” nation whose values were “incompatible with the United States and threatened to corrupt the nation,”25 and other racial groups were scripted in similarly racist ways, intellectual property’s legal and economic decisions were inseparable from whiteness itself. Despite formal equality, copyright law and conceptions of citizenship constructed a domestic and racialized version of Americanness, which privileged white intellectual properties using familiar and established racial scripts.