Tag - critique of foundation of rights as reliant on problematic western conception of personhood, impact - comodificaiton

K. J. Greene, Olufunmilayo Arewa, Keith Aoki, and Stephen Best have recently examined how these “hidden” forms of racism or racialization constitute part of the foundation of copyright and trademark law. K. J. Greene observes that “an underlying assumption of race-neutrality pervades copyright scholarship. However, not all creators of intellectual property are similarly situated in a race-strati‹ed society and culture. The history of Black music in America demonstrates the significant inequality of protection in the ‘race-neutral’ copyright regime.”66 Greene explores how inequalities in bargaining power and pervasive societal discrimination left most African American jazz, blues, and increasingly hip-hop musicians powerless to claim complete ownership of their creations. Record compa- nies and producers found that a combination of contract and intellectual property law supplied them with the legal means to strip musicians of their ownership interests. Greene also claims that copyright law, due to its requirement that protected items be written or tangible texts, privileges Western forms of creativity, emphasizing composition over African American forms that tend to emphasize orality, improvisation, and performance. He suggests that African American cultural production follows different patterns and thus receives less protection from intellectual property law. Following Greene’s analysis, Arewa shows how George Gershwin and his heirs could “own” his version of African American stylings in Porgy and Bess and other songs because his creativity focused on composing scores.67 For Greene and Arewa, it is not simply formal legal doctrines but the social structure that produces the unequal distribution of ownership interests.

Beloved and the Vanilla Nightmare series anticipate these criticisms as they reveal how African Americans have entered property law too fre- quently as property to be owned or as trespassers to be excluded, rather than as owners. For Sethe, legal discourse, social institutions, and cultural relations come together to undermine any attempt to claim ownership over herself and her family. Baby Suggs, Sethe, Paul D, and even Denver disagree about exactly what kind of property claims they should make and what those claims might mean. Legal discourse provides little guidance for African Americans about claiming ownership rights, either through con- tract or through intellectual property law, primarily because they had little ability to participate in the crafting of official doctrine. Their experiences, institutions, and cultural traditions do not shape property law’s normative assumptions. For Piper and today’s hip-hop aesthetes, law continues to recognize the ownership of raced properties. Copyrights and trademarks still confer ownership rights over racialized images, texts, logos, and sounds. Hip-hop texts do not assume that racism or racialization has withered away or that legal discourse operates in a color-blind fashion. Rather, hip-hop aesthetics reveals how postmodernism’s play and ambiguity stem from its reliance on the unconscious mapping of racism onto social rela- tions. These samples recontextualize and thus make obvious what intellec- tual property law erases or hides. Thus, Piper completes the American Ex- press advertisement by depicting the unspoken fear behind the company’s famous slogan.

Providing a more thorough theoretical critique, Best argues that the long journey from an economic system based in slavery to one based in intellectual property rights rejects the ongoing conceptual problem of defining the relationships among the body, personhood, and property.68 Over the course of the nineteenth and twentieth centuries—from the slavery that Morrison describes to the image culture of today, upon which Piper “draws” and comments—the theoretical elusiveness of defining personhood has evolved into new forms but remains tethered to property rights. For Best, a literary critic, the ambiguous relationship between bodies and authorial voice presents the challenge of speaking or writing authentically and establishing ownership of the self, its representations, and its expres- sions. As legal discourse frees legal personhood from particular bodies, their labor—both physical and mental—becomes increasingly available for commodification. As an example of his thesis, Best provocatively demonstrates how blackface minstrelsy becomes the trademarked act of T. D. Rice, a white performer in blackface, precisely because he mimics or copies “authentic” African American dancing practices, thereby breaking the link between a movement or ritual and its original performers.69 Rice becomes the de facto owner precisely because he has transformed a communal ritual, based in shared knowledge and experience, into an easily consumed and commodified form. Racialized slavery is fundamental to capitalism’s devel- opment and the legal infrastructure the country developed, Best argues, be- cause it is the pervasive ‹ction of race that permits the distinction between legal persons and actual physical bodies. Best’s analysis suggests a provoca- tive explanation for Sethe’s incomprehensible actions: she is not trying sim- ply to save her children from slavery’s horrors but to demonstrate their hu- manity despite the law’s attempt to transform them and her into a commodity, thus refusing to acknowledge their legal personhood.

Best’s study only examines property law through the Plessy v. Ferguson (1896) decision, but Best offers some provocative conclusions about how intellectual property law has become the contemporary battleground for distinguishing actual minds and bodies from legal persons possessing rights.70 He also suggests that equality jurisprudence has followed property law’s assumptions by distinguishing between persons and bodies. By doing so, equality has proven to be an empty standard for improving the condi- tions of those African Americans because its reliance on legal personhood rather than bodies has “made the world safer for commodified personhood than for universal freedom.”71 In her study about law and culture, Jane Gaines lays the groundwork for Best’s conclusion. She argues that establishing property rights in cultural products constitutes the ‹rst step toward a de facto loss of ownership of those products for a cultural group.72 Adrian Piper, in effect, illustrates Best’s and Gaines’s analysis by juxtaposing the trademarked slogan of American Express, a disembodied corporate entity but nonetheless a legal person, and images of African American men. Al- though Piper herself has never been directly sued over Vanilla Nightmares #18, American Express threatened to sue a publisher if it chose to use the image as the cover art for a book. In response, the publisher chose to include the image within the book, and American Express did not file suit.73 Despite the drawing’s imagery, the unconscious racialized fears upon which American Express’s slogan plays have most likely affected many more people than Piper’s revision of it has. As per Bent’s argument, prop- erty law in effect preordains this outcome because the legal personhood conferred to American Express establishes its priority over the real bodies of African Americans, Adrian Piper, or the men depicted in her art. Piper, the philosopher and the artist, clearly understands the property implica- tions in both her art and American culture because she signs this work with a copyright symbol, thereby attempting to assert her property rights over a racialized image and trademarked slogan. Despite recent efforts by African American cultural workers, such as Morrison and Piper, to speak the lan- guage of property rights, Best is skeptical. The Fugitive’s Properties culmi- nates with this final sentence: “To that extent, it seems reasonable to con- clude, in matters of property as well as matters of right, that there are no rules.”74 The history of property discourses, according to Best, has devel- oped increasingly abstract concepts of legal personhood, which fortify the distinction between legal subjects and actual bodies, thus furthering the marginalization of the disempowered.