Challenging the value system behind IP law can spill over. Don’t underestimate the potential of performative resistance.

Debora Halbert writes, “The work of asserting alternatives to intellectual property is an interpretive battle. Intellectual property remains in the process of definition—there is a struggle to define the scope and meaning of the law.”1 Examining the particularities of the struggle is useful for both imagining new ways of relating to intellectual property law and mapping new strategies for activism. The question of how resistance to intellectual property’s racial scripts works is an important one—and one upon which Lawrence Liang’s concept of porous legalities sheds light.2 Liang contends that (racial) capitalism produces residual humans—including migrants, squatters, and pirates—whose labor value is rendered obsolete. In doing so, it creates space for seepages, “the action of many currents of fluid material leaching on to a stable structure, entering and spreading through it by way of pores.”3

Seepages, by way of performative acts of resistance, erode (racial) capitalism and “gradually disaggregate its solidity.”4 The romantic academic ideal of willful resistance from a conscious understanding of politics and culture is far less common than unintentional transgressions that produce anti-racist and anti-colonial effects. The latter acts, when extrapolated across urban spaces, “[create] new conditions in which structures become fragile and are rendered difficult to sustain.”5

Liang uses the concept of seepages to theorize the porousness of law, which he argues are created through “a profound distrust of the usual normative myths of the rule of law, such as rights, equality, access to justice, etc.”6 The concept of porous legalities provides a frame for understanding how alternative intellectual property worldmaking can take root in quotidian performances.7 Transgressive performances that create new “performative repertoires,”8 in Isaac West’s words, have the potential to exploit the gaps in the law in ways that produce new legalities.

If (racial) capitalism and law can be eroded through the iterative performances of individuals, groups, and institutions, so too can the categories of race, national identity, and citizenship through which capitalism and law operate. This chapter focuses on understanding how creators of color have contested racial scripts around creatorship/infringement, mobilizing them in ways that undermine the racial scripts and racial feelings that animate them. Often, as Liang suggests, these strategies involve remaking capitalism or using it against itself and reorganizing public feelings in racially radical configurations.

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.