Uncertainty spills over to innovation broadly – and its reverse causal.

When we think of private property, we think of three characteristics: the right to exclude others, title (ownership), and the right to collect income or rent off the property.'67 In each of the patterns of appropriation of Black cultural production, we see Black artists deprived of some combination, if not all three, of the private property characteristics of creative works. The American copyright system, unlike other areas of property law, identifies an "author" as the source and owner of certain rights, without ever locating authors in any social context. 168 Obviously, not all minority artists experience discrimination in the protection of artistic property. However, minority artists have almost certainly borne a heavier burden of exploitation. Although it cannot be said that the copyright system was intentionally designed to disadvantage Blacks, it has nonetheless operated in such a fashion. The factors which disadvantaged African-Americans as a group from acquiring traditional forms of wealth and property also imposed disadvantages in the intellectual property system.16 It has been noted that: intellectual property law can ameliorate but not eliminate underlying disparities in bargaining power [and accordingly] economic need might induce an impecunious author or inventor to part with control over her work, and even give up liberty to use it, perhaps in return for fairly small rewards. Thus, although intellectual property improves the creative person's position, it can guarantee neither adequacy of compensation nor continuation of control. 1 70 In the abstract, this observation seems sensible enough, but in the concrete, it fails to account for invidious, systematic discrimination which consistently forced a class of artists to part with their creative works "for fairly small" or no economic rewards.' 7 The impact on artists personally of the appropriation of their works was often devastating and tragic.' 72 Rock pioneer Little Richard sold his publishing rights to the record company for fifty dollars, "and part of that deal seems to have included the addition of a mystery name... to the songwriting credits."173 One might draw a parallel between Blacks in the share crop system to Black artists in the recording industry. The share crop system divested economic compensation from Black farmers who did not own capital resources (such as equipment, seeds, etc.), or maintain the financial records detailing who owed how much.174 Furthermore, many Black farmers were illiterate or sermiliterate, reflecting a legacy of segregated and substandard educational facilities. The result was pervasive exploitation of agrarian Blacks, despite the theoretical race-neutrality of the share-crop system.'75 Similarly, agents of the recording industry appropriated intellectual property from these same agrarian Blacks who created the music which came to be known as the blues. 176 Again, as in the share-crop system, white businessmen controlled the capital resources (such as record studios and publishing houses), as well as access to the expertise needed to secure legal protection. 7 7 In the employment area, Blacks had been subject to rampant exploitation; the situation seems identical in the artistic area, in spite of, and to a degree perhaps because of, copyright law.178 Particularly in a multibillion industry, such as the recording industry, it seems difficult to reconcile the fact that while Black-created music is omnipresent, the flow of dollars has only occasionally created Black millionaires. The fact that minority artists received less protection- or in many cases no protection- for their compositions undermines the incentive theory of intellectual property laws. Many Black artists received little no economic reward for their creations. 79 Others certainly received less than what they should have.'8 ° Something beyond the Western notion of incentive must have motivated these blues and jazz artists of Black ancestry to continue to create. 8' Perhaps the most taxing structural element of the copyright regime vis-a-vis Black artists has been the requirement of reducing works to a tangible form.'82 The copyright law will not protect works which are not "fixed" in some tangible form. In practice, this means that the work must be reduced to writing. Black culture, however, historically reproduces itself out of an oral predicate.'8 3 Furthermore, as a result of educational deprivation, many Black artists of the past could not functionally read or write. The reduction to tangible form or embodiment tenet clearly values written expressions, which will be deemed "tangible" over non-written, i.e. oral expressions, and non-tangible improvisation. ' The structure of the copyright regime itself, which requires fixation of works of authorship in a "tangible medium" could be said to impose disadvantages on Black artists as a class, who were raised in an oral tradition dating back to Africa.'18 It has been noted that "[tihe structure of preliterate society renders conventional intellectual property protection ineffective. Typically, such cultures lack both written records and formal government. As a result, westernstyle patent and copyright laws, which require elaborate documentation and bureaucratic enforcement, are not feasible". 8 ' Two prominent examples are jazz music and Africaninfluenced dancing. As one commentator pointed out: [tlhe Black approach to rhythm, being a function of the greater oral approach to time, is more difficult to define in writing. Capturing the rhythms of African or modem AfroAmerican music with Western notation is a lot like trying to capture the sea with a fishnet .... the complexity of this rhythmic approach is in large part due to the value placed on spontaneity and the inherently communal nature of oral improvisation. Other music scholars have similarly noted the incompatibility of jazz music with a system of written notation.88 Prior to 1976, it was necessary for musical compositions to be in written form to obtain copyright registration. 18 9 Hennessey notes that the "improvisation and tonal variations that were at the core of jazz performances could not be captured on sheet music, the main form of music distribution before 1914." 190 It has been noted that "[e]ven today ... music notation is the only way to actually copy a musical composition. A phonorecord merely captures a particular performance by musicians, whose interpretation and technique cause the performance to exist independently from the composition."' 9 ' However, "a singer's performance is not copyrightable under the federal law. ' In contrast to patent law, the copyright law has an extremely low threshold of originality. This threshold arguably preserves First Amendment values of free expression, but clearly promotes imitation which does rise to the level of actual plagiarism, or copying. 193 In practice, therefore, Black innovators in music have been powerless to prevent white imitators from capitalizing on their ground-breaking efforts, and, in a racially polarized society, reaping the profits of Black innovation and creativity. 9 4 The copyright regime's standard of minimal originality for authorship, while prohibiting outright copying, encouraged imitation.' 95 Certainly, a strong current favoring imitation animates American jurisprudence.'96 There is an inherent tension between compensating originators and promoting creativity by permitting borrowing. 197 Imitation may be the sincerest form of flattery, but in a society where separation is the norm, the direction of who profits from imitation has been decidedly one-way in its direction.' 98 Our society has arguably become less racially stratified in recent decades, yet the pattern seems present today; one of the topselling rap songs of all time is Ice, Ice Baby, by white rapper Vanilla Ice.' 99 Similarly, The Beastie Boys, a white group, were the first rap group to top the Billboard album charts."' The irony of this is stark when compared to the fact that "[flap music is a Black cultural expression that prioritizes black voices from margins of urban America....2 Perhaps even more ironic is that judges in recent times have characterized one of todays primary Black art forms - rap- as a form of theft.20 2 Under the idea-expression doctrine, only specific expressions of an author are protected, not the underlying ideas embodied in the work. Some have argued that the idea expression doctrine is intellectually bankrupt. 20 1 The idea expression doctrine has also penalized the most innovative artists in blues, jazz, and rock, essentially denying protection of their signature styles and denying compensation for the creation of genres. Little Richard's syncopated whooping style of singing, or the ragtime chops of W.C. Handy would be considered a style, essentially a non-protected idea, rather than a protected expression. However, copyright will generally not protect either style or genres, and imitation of style (e.g. Little Richard's style of singing to the Beatles on She Loves You, Yeah), is generally not actionable. 4 Accordingly, while a jazz composition is protectible under the copyright system, the idea or genre of jazz would not be.2 °5 This doctrine can be said to have a disparate impact on innovators of genres, vis-a-vis imitators that capitalize on a non-protectible "idea." The idea expression dichotomy of intellectual property precludes monopoly protection of rap or jazz as a genre. Yet, many of the innovators of these genres lived or died in relative obscurity and poverty, while the imitators, typically white and not nearly as creative or innovative musically, reaped a windfall.