Perm: do the plan alongside the alt as intellectual property fugitivity. Solves the links without getting coopted or over-investing in legal reform.

Williams offers a starting/ending point for imagining where anti-racist and anti-colonial activists should commit their energies. For instance, the racial dynamics of the conflicts between R&B and hip hop and Gaye and Pharrell may have justified advocating for neither or both parties in an amicus brief, by critiquing the divide-and-conquer ethos of the situation and the case and by critiquing the capitalist model around which victory was built. Advocating for intellectual property egalitarianism in a way that is legally and politically legible requires pushing back against accepted (intellectual) property doctrines, which conceal racial logics. The Korematsu Center’s amicus brief in Tam, for instance, performs such a task by grounding its opposition to trademarking the Slants’ band name in the racial histories of the United States, specifically those that resulted in the internment and economic disenfranchisement of Japanese Americans during World War II. In many ways, merely creating counterscripts—i.e., advocating in an amicus brief even without attendant relief—accomplishes this end. Repeatedly engaging and refusing those myths that constrain creatorship, citizenship, and personhood pushes back against whiteness as property and shifts public cultural conversations.

One easy objection here is that an amicus brief that tells a just and compelling racial story does not have legal impact. However, this conclusion is both untrue and, at least in part, irrelevant. The Color of Creatorship has demonstrated how the unspoken desires that structure the economics of intellectual property law are based not in fact but in myths and feelings. Racial scripts are about attachments to social constructions of race, property, nation, and person, not objective or rational conceptions of those terms.

As CRT scholars from Richard Delgado to Keith Aoki contend, telling stories in legal contexts shifts the purportedly race neutral language, representations, and emotions around which law is crafted, in ways that are invisible and seemingly unproductive but important. The Love Symbol, Beast Mode®, and the TKDL make claims of inclusion alongside radical claims to dignity and humanity, which are effective even though (intellectual) property law continues to be rigged against people of color. Telling legal stories about the personhood of people of color in intellectual property terms pushes back against the foundational racism and racial sentimentality of copyrights, patents, and trademarks.

These examples provide a useful starting point for thinking about how people of color can become intellectual property fugitives, thereby confronting the two-body problem that Stephen Best notes arose with the decoupling of physical labor and intangible labor. Such decoupling transformed people of color, particularly Black people, into commodity forms that, because they were the objects of property ownership, definitionally could not own their own intangible labor. The Love Symbol, Beast Mode, and the TKDL refuse this decoupling, by occupying and reclaiming the spirit of fugitivity. That occupation is a decolonizing move, which begins a long, arduous process of delinking intellectual property from modernity/ coloniality and its implications.

Returning to Best’s analysis of the relationship between the fugitive and embodiment—specifically that Fugitive Slave Laws gave rise to a twobody problem that allowed whites to treat Black people as “living property”—creates a bridge to a new and productive rereading of fugitivity, a concept that can be occupied to create a radical approach to intellectual property politics. Fred Moten, before defining the same term, asks, “How do we think the possibility and the law of outlawed, impossible things?”41 He responds to that inquiry by writing on fugitivity as a resistive concept, practice, and mode of being:

This fugitive movement is stolen life, and its relation is reducible neither to simple interdiction nor bare transgression. What can be attained in this zone of unattainability . . . is some sense of the fugitive law of movement of black social life ungovernable, that demands a para-ontological of the supposed connection between explanation and resistance.42

Harney and Moten’s conception of fugitivity describes a “stolen life,”43 in which anti-racist and anti-colonialist scholars and activists “do not come to pay their debts, to repair what has been broken, to fix what has come undone.”44 Harney and Moten continue:

We cannot be satisfied with the recognition and acknowledgement generated by the very system that denies (a) that anything was ever broken and (b) that we deserved to be the broken part; so we refuse to ask for recognition and instead we want to take apart, dismantle, tear down the structure that, right now, limits our ability to find each other, to see beyond it and to access the places that we know lie outside its walls . . . once we have torn shit down, we will inevitably see more and see differently and feel a new sense of wanting and being and becoming.45

The intellectual property fugitive, a figure I have sketched out through the examples in the previous chapter, engages law with the knowledge that intellectual property law can never be effectively reformed, even if it periodically benefits people of color, because it is too deeply intertwined with racism and racial capitalism to be redeemable. Moreover, the intellectual property fugitive performs radical resistance to copyright, patent, and trademark regimes that are mired in national identity, citizenship, and racial capitalism through consistent acts that “tear down the structure.” The goal of the intellectual property fugitive is not only a series of policy proposals to tinker with intellectual property law but a hegemonic commitment to constant critique, particularly storytelling that rescripts racial formations, remakes racial feelings, and creates possibilities for more spacious conceptions of belonging, in knowledge and human cultures.

Mat Callahan, in an article titled “Why Intellectual Property? Why Now?” writes:

Under these conditions, capitalist interests view IP not merely as an opportunity to seek profit, but more fundamentally as the underpinning of a global regime, especially the trade treaties and international agreements that dictate the flow of all goods and services be they material or intellectual. Indeed, the threat many movements pose . . . is not primarily one of piracy or “theft” of the intellectual property of one corporation or another; rather, the threat is to the foundation of private property and the ownership of ideas as a conceptual framework for law or governance of any kind. In other words, within any and every conflict revolving around IP are the core principles of capitalism: possessive individualism, private appropriation of public wealth—especially natural resources—and the despoiling or destruction of the commons. Thus, what makes IP a vital battlefront for our time is that the stakes are capitalist enslavement or human liberation.46

Though Callahan focuses on the issue of economics, he does not discuss the issue of race, which also underpins contemporary systems of intellectual property law. Specifically, race and economics are intertwined in ways that guarantee the valuation of particular kinds of ideas with particular kinds of owners. Reimagining creatorship, infringement, citizenship, nation, and personhood in intellectual property law requires answering fundamental and pressing questions about race and capitalism. Those questions will become increasingly important in coming years, as intellectual property becomes an even more central space for the negotiation of economics, politics, and humanness. For Harney and Moten, fugitivity as concept is adversarial toward state-based policy reforms as the ultimate mechanisms for producing equality. White supremacy guarantees failure as well as ontological collusion with a racist system invested in destroying people of color. Given that intellectual properties are legally constructed through domestic and international institutional action, the knee-jerk response is to intervene legally.

Unlike Harney and Moten, I do not conclude with the notion that individuals can never ask for inclusion or recognition within the state. Rather, I understand fugitivity, particularly when read alongside decoloniality, as metaphorical shorthand for the need for constant vigilance about the underlying racial investments of the state and publics as well as an epistemological break with the seductive forces of law, even when they seem appealing. Letting go of the illusion that, as Bell counsels, law can bring radical change and embracing, instead, that legal gains are frequently rolled back partially or completely, leaves space for committing to continuing anti-racist and anticolonial struggle. The legal and performative aspects of engaging in that struggle, which come in a variety of individual and institutional forms, are the path to treating people of color not as objects decoupled from their creativity and innovation, but as whole persons with dignity, humanity, and the capacity to occupy the category of creatorship in all its pluriversal forms.