Trademarks/copyrights reformable---

In recent years, a few scholars have begun to suggest that certain areas of intellectual property law-primarily copyright-may play a positive role in social justice. They contend that selecting different rationales for intellectual property law-apart from strictly utilitarian ones-may assist with social utility and social justice outcomes.15 They also argue that there is a role for intellectual property acquisition to help individuals achieve economic independence and personal empowerment. 16

Little has been written on the role of trademark law on development and social justice, however, and even less on the role of identity protection as a mechanism for social justice and personal freedom. Several factors support examining these issues now. First, minorities in the United States are much less likely than non-minorities to seek trademark protection from the United States Patent and Trademark Office ("USPTO").17 According to the USPTO, "minority owned businesses are seeking patents at rates almost ten times lower than their non-minority counterparts" and are "four times less likely to seek trademarks."' 8 These statistics demonstrate that "some minority groups are not as likely to participate in the U.S. innovation system."' 9 Minorities may be considered among the marginalized citizens worthy of consideration for targeted legal services as a form of social and distributive justice in the field of intellectual property. 20

Partially in direct response to efforts by the USPTO, lawyers are beginning to offer pro bono services to intellectual property clients, and intellectual property clinics are emerging at law schools nationwide, indicating that the American legal community may consider offering low-cost or free counseling in intellectual property law, including trademark law, to be justified by social responsibility. 21 The right to prevent commercial exploitation of one's likeness and identity, a property interest closely related to and sometimes grounded in trademark law, also merits attention as an area rife with commercial potential for the individual and yet equally vulnerable to misuse. This article explores the role of trademark and identity law in promoting self-sufficiency and self-reliance among underserved populations, and examines both areas of law through the lens of social justice and personal empowerment.

Part I explains the simple basics of trademark law and right of publicity legal doctrine, and how the two have merged in certain contexts. Part II examines social justice themes for trademarks and identity rights as applied not to society at large but instead to the "marginalized" individual. Part III explores the economic and philosophical arguments against the expansion of intellectual property regimes, and in favor of narrow interpretation of IP interests at the individual level, and focuses on how those arguments play out in trademark and identity law. Part IV concludes by suggesting that while social justice concerns are clearly challenged by a broadlydefined and enforced trademark system, which allows commodification of identity, they may be correspondingly served when individuals use these rights for selfexpression and economic empowerment.

I. INTELLECTUAL PROPERTY AND SOCIAL JUSTICE THEMES: DEVELOPMENT ECONOMICS AND PERSONAL EMPOWERMENT

With the information age came direct and rapid growth of intellectual property law as a method of defining and controlling major business assets.86 Although intellectual property law has changed and expanded repeatedly over the past century, the commodification of information, ideas and even identity has grown vastly in the so-called information age.87 In response to the growth of electronic and global commerce, intellectual property regimes have expanded in geography and in scope. Scholars have voiced concern that wealthy property owners in the form of multinational corporate entities will encase valuable goods and knowledge assets in strong property interests, enforced by powerful governments and over-reaching property laws, and thereby deprive individuals (and poor people in particular) of such things as life-saving medicines, or life-altering knowledge and information.88

This section explores those concerns as they are leveled against intellectual property rights, including trademarks.

A.Development Economics and Intellectual Property Law

The conflict over the role of intellectual property law in economic development, social justice, and culture is often played on the battlefield of economics. The United States Constitution provides for patent and copyright law as a means to "promote the Progress of Science and the useful Arts,"89 almost universally understood to rest on a utilitarian notion of incentivizing creativity for the benefit of society.90 Economic analysis of intellectual property dates back at least to the classical economists, 9 ' but truly flourished beginning in the 1970s. 92 As nations, including the United States, saw the need to incentivize technological innovation in order to maintain global competitiveness, the importance of intellectual property grew in the national and world economy, as did a widespread call for expanded property rights.93 Intellectual property developers complained of weak intellectual property laws and inconsistent enforcement standards around the globe, producing evidence of widespread copyright piracy and trademark infringement, and calling for international standardizing of IP rights. 94

A. Economic Opportunity through Intellectual Property

Professors Lateef Mtima and Steven Jamar at Howard University Law School are among the most outspoken proponents of social justice foundations for intellectual property law, as well as acquisition of intellectual property by individuals. In particular, Professor Mtima has argued that the Copyright Act is founded not just on social equity values, but on social justice ones as well.107 He contends that access to copyright for marginalized communities is crucial, in particular in light of the digital environment. 0 8

Mtima acknowledges and explains the "social utility" function of Copyright as supported by Article 1, Section 8, clause 8 of the Constitution and proceeds to explore whether, in judicial interpretation and actual practice, the Copyright Act can also serve a social justice function. 0 9 In arguing for a broader sensitivity among the bench, bar, and academy to "copyright social justice," Mtima posits that it is first necessary to appreciate the myriad examples of "copyright social injustice":

For example, the tragic history of African American and other marginalized members of society being systematically defrauded out of the commercial profits derived from their creative genius, is widely lamented as a quintessential example of social injustice within the intellectual property regime. Often unaware of the opportunities and protections afforded by the intellectual property law, and sometimes simply lacking the legal or economic resources to secure and enforce their rights, these artists and innovators saw their rightful rewards misappropriated by white artists, publishers, entrepreneurs, and promoters, and sometimes even academics and scholars, all of whom had access to the financial and racial capital essential to commercial development and exploitation of artistic and innovative works.110

Among other ills, Mtima notes that systematic deprivation of access to copyright's economic opportunities can lead marginalized artists not to record their creative works, and potentially not even to share them, both of which fly in the face of the purpose of the Copyright Act."' Mtima proposes that in light of the ease with which artists can now create and share using digital information technologies, the time is ripe for his so-called "social utility/social justice interdependence" paradigm to influence the judiciary (and, presumably, the bar).112 "[E]quipped with at least a working knowledge of the applicable intellectual property rights and protections, and of the intellectual property commoditization system as a whole, the marginalized amateur creator can negotiate her initial agreements more effectively, or at least negotiate strategically with respect to future agreements, when her bargaining position is likely to have improved."" 3 In other words, if artists have knowledge of copyright, and accessible opportunities to exploit its protections, it follows that they can fully participate in the social utility outcomes copyright law encourages, which advances social justice interests as well.

Mtima's principal argument is that the Copyright Act itself is based upon social justice as well as social utility foundations.114 He notes that one can always apply copyright law to prevent injustice, but that adequate support resides in the Intellectual Property Clause itself for copyright law to be a mechanism of social justice as a matter of constitutional law.115 Actions that prevent institutional manipulation of copyright law to the detriment of minorities and the poor obviously advance "copyright social justice and intellectual property empowerment," he writes, but in addition such actions are "vital to the Constitutional mandate of copyright social utility."" 6