Copyright is used as a justification to embrace whiteness and limit Black scholarship

The concept of true imagination, which became an important doctrinal standard for determining whether creative works were protectable from the 1700s on, functioned as an important mechanism for linking copyright law with race. Copyright was the vehicle that American Republicans used to unify the nation around a rapidly developing print culture as well as one that embraced whiteness as a prerequisite for authorship.33 Because the nation’s citizens were by definition white, not of color, American copyright formally and informally imagined and incorporated a national identity that excluded people of color from its rights and privileges. Yet the understanding of people of color as being outside the boundaries of creatorship and citizenship persisted long after copyright’s formal exclusions ended. The ideological continuity of conceptions of true imagi- nation lasted well into the mid-1900s, before evolving yet again. In the late 1700s, the trial of Phillis Wheatley, the first Black woman to publish a book of poetry in the United States, and Thomas Jefferson’s subsequent commentary on that trial formalized beliefs that Black women—and, by extension, other people of color—lacked the capacity to imagine, in part because they were not whole persons. Though primarily formed around anti-Black racial scripts, the framework of true imagination reared its head again in subsequent disputes involving Latinx and Black authors. Even as pushes against formal racism began to succeed, legal cases continued to per- petuate the racial double standards that Jefferson articulated in Wheatley’s trial. The underlying racial scripts that were determinative in these cases— i.e., that Black people lack the creativity, work ethic, and intelligence to imagine in a manner consistent with copyright law—operated to denigrate Latinx authors. In other words, racial scripts of anti-Blackness became ve- hicles for dehumanizing other people of color as well.34 All evidence suggests that the young Phillis Wheatley did not set out to become the first African American to publish a book of poetry in 1790. Publishing the book was no small feat, and it happened only with the en- couragement of her owner, Susanna Wheatley.35 In order to receive copy- right protection for her work, Wheatley was forced to prove to eighteen white men, who declared themselves the “most respectable characters in Boston,”36 that she indeed possessed the creative capacity to write the poems that she claimed as her own. While Wheatley ultimately convinced those men that she had produced copyrightable poetry, she did so at great cost, both personal and racial.37 Wheatley’s continuing difficulties high- light the extent to which her struggle was not simply about the quality of her work; it also had to do with the racial scripts and racist sentiments around Blackness at the time. Despite the complex legal negotiations over the vocabulary of copyright, specifically the standard of originality, that emerged in the 1820s, there does not appear to be any white analogue to Wheatley’s trial. Proving originality, a legal doctrinal standard that became more re- strictive in the early and mid-1800s before becoming more liberal, none- theless would not likely have given rise to suspicions about an inherent lack of capacity to imagine, as it did with Wheatley.38 Instead, as Wheat- ley’s trial demonstrates, the presumptions against Black creatorship were unique and ingrained in American culture. For centuries after the trial, African American writers and artists sought to refute the claim that Black people lack imagination and, therefore, the ability to create with originality. Moreover, the anti-Black spectacle of Wheatley’s trial mobilized racial scripts that could be applied to other groups, such as Indigenous peoples and Latinx persons, thereby articulating and amplifying racist and colo- nialist sentiments about their incapacity to create. In 1781, Thomas Jefferson, who had never met Phillis Wheatley, de- scribed her as lacking the capacity for true imagination. Jefferson’s racialized proclamations about the capacity to create and the definition of true imagination, with analogues to “imitation,” came to be embedded in copy- right law’s originality standard as continuing justification for racism. In essence, true imagination and imitation evolved into shorthand for racial scripts about Black creatorship. At a time when the violence of Jim Crow operated as a structural barrier to full equality for African Americans in the South, the phrase worked to demarcate white creativity from Black creativity. Jefferson, who crafted a secondhand racist and sexist account of Wheatley, commented in Notes on the State of Virginia: