The U.S. Copyright Act profits off the exploitation of black works

The Copyright Act of 1976 does not explicitly discriminate on the basis of race or culture.17 But copyright law was originally crafted in a Western society strongly influenced by the forces of racism and nationalism.18 Race is the socially constructed differentiation of groups based on phenotype.19 Despite being a social construction, race (and its associated cultures) has long been a critical factor in how the law has treated individuals, whether by design or in effect.20 To understand the predicament of racial minorities under copyright law, it is important to first examine the history of copyright law in the United States. Through the lens of critical race theory, this Part explains how the structural elements of U.S. copyright law have left minority artists’ works unprotected and open to white exploitation. The rise of critical race theory from the 1980s onward increased professional and scholarly consideration of how law affects different racial groups—with the ultimate goal being a “norm of ‘racial equality’ where different groups will not continue to suffer the oppression and subordination that they have suffered.”21 While races and cultures are continuously shifting and evolving, critical race theory has understood intellectual property principally as a model for protecting white, or Western, privilege, as well as this group’s understanding of society.22 As communications scholar Anjali Vats and intellectual property law scholar Deidré Keller concluded, a study of race and culture in the context of intellectual property should not be limited to the dichotomy of white and Black, but instead a comparison of the white or Western-created laws and their effects on racial minorities.23 The structure of copyright protections and rights under the Copyright Act have long provided unequal opportunities for racial minorities and their cultural expressions.24 From 1776 until the 1960s, U.S. intellectual property law’s relationship with artists of color was defined by “appropriation, degradation, and devaluation.”25 The music industry, in particular, profited enormously from the innovation of Black artists by capitalizing on fundamental genres of American music such as ragtime, blues, and jazz, while providing minimal remuneration or recognition for those styles’ Black progenitors.26 Music is representative of how U.S. copyright law considered Western perspectives on creative works, while failing to recognize nonWestern artists and artistic traditions. The structural elements of U.S. copyright—(1) requiring fixation in a tangible form, (2) disfavoring improvisation, and (3) mandating a known, recently living author—have led to lower compensation and recognition for racial minority artists or withheld protection altogether.27 Fixation is a basic requirement for any U.S. copyright protection—the work must be contained in a tangible physical form.28 This model of protection imposed a distinctly Western European tradition on copyright for all music.29 While Western Europe has a tradition of composers who drafted their music in written notation,30 other cultures around the globe have often lacked a written composition tradition, instead placing greater emphasis on a keen musical ear and improvisation.31 The centrality of fixation for music was set in an infamous court decision from 1948. In Supreme Records v. Decca Records, Inc., the issue before the Southern District of California was whether a white singer’s cover recording of a song recorded by a Black singer was lawful.32 In 1948, sound recordings were not yet protected under federal copyright, so the case was brought under unfair competition law.33 But, in deciding the case, Judge Yankwich imposed his own (white) musical tastes on intellectual property law; he concluded the original recording by a Black artist was “thi[c]k, mechanical, [and] lacking inspiration,” while a cover created by a white artist was “rich, against a musically colorful background. . . . sound[ing] full, meaty, [and] polished.”34 In addition, he held that anything added to a song in a recording alone, rather than the underlying musical work, could be freely copied.35 This was disastrous for Black and other non-white musicians, many of whom did not write down their songs in musical notation, which was necessary prior to 1978 to receive copyright protection for musical works.36 This long-standing bias favoring written over oral music37 is inherent in U.S. copyright law, leaving out protections for Black and other musical traditions. For example, African tribal music was transmitted orally for generations, and this tradition was maintained when Africans were brought as slaves to the United States.38 Based on their African oral musical traditions and enforced illiteracy under U.S. slavery, enslaved Black people created and shared music almost exclusively through performance.39In many ways, the experiences and methods of creation by Black artists—along with their under-inclusion in copyright law—can be likened to those of Indigenous artists.40 Native American and Indigenous artwork, music, and traditional knowledge are also frequently left outside the confines of intellectual property protection; this is due to existing for millennia, lacking an identifiable author, and being created by multiple people or an entire community.41 Scholar Trevor Reed explained that the unequal treatment of Indigenous creative works stems from the Copyright Act (1) requiring that works be fixed; (2) requiring that they are original; and (3) not allowing ideas to be protected.42 Indigenous cultures seldom physically record folklore or traditional knowledge.43 For example, Indigenous traditional oral music in the United States and around the world rarely manifests in written form.44 The resulting lack of protections for Indigenous artists led to their exploitation by creative industries.45 For example, the Zulu tribesman who composed the famous song from Disney’s The Lion King, “The Lion Sleeps Tonight,” was merely paid a small amount and only received credit for writing the song decades later.46 The Zulu composer was not alone; the low degree of originality required for copyright allowed imitators of artistic styles to make windfalls while the progenitors of those styles languished in obscurity since artistic style is not eligible for copyright protection.47 Several scholars and lawyers have tried to find a place for Indigenous community cultural expressions and traditional knowledge through specific intellectual property protections.48 However, problems with using copyright to protect Indigenous cultural heritage have persisted. Such oral forms of music creation were directly at odds with U.S. copyright law’s requirement that music be notated to receive protection.49The fixation issue was not remedied by including sound recordings in the Copyright Act. Sound recordings have been protected since 1972, but receive more narrow protections than other copyrightable works.50 The sound recording itself cannot be copied directly under copyright law, but anyone can freely imitate a sound recording, provided there is not an underlying musical work with copyright protection of its own.51 After 1978, phonorecords of sound recordings could be used to meet the fixation requirement for musical works.52 Fixation in a sound recording now qualifies for musical work copyright registration, but only if the recording artist and composer are the same person.53 However, this shift in the law still requires fixation—neglecting songs that were neither written nor recorded and merely sung or performed live.54 Improvisation is another non-Western musical practice not encompassed within U.S. copyright law. Improvising plays a central role in a number of musical traditions. African music emphasizes improvisation—with varying stanzas, melodies, and notes—instead of written stasis.55 Stemming from these African musical traditions, improvisation maintains an important and central role in Black music in the United States, from spirituals to hip hop.56 The various musical styles that emerged from Black musical traditions, such as jazz and blues, emphasize spontaneous—never written—improvisation.57 Indeed, blues music was traditionally not transcribed on sheetmusic at all, instead focusing on the musician’s ear and building off common lyrics and musical forms.58 African and Black music are not alone in utilizing improvisation. For instance, Middle Eastern music emphasizes melodic, improvised solos (called “taqsims”) and ornamentations.59 Indian classical music is also heavily based on unwritten improvisation.60 Despite the broad importance of improvisation across global musical traditions, it is not protected under, and even maligned by U.S. copyright law. Improvisation, as a spontaneous and live performance, does not meet the fixation requirement for copyright. In addition, improvisation from set melodies is at odds with copyright’s understanding of derivative works. A derivative work is a work “based upon one or more preexisting works . . . in which a work may be recast, transformed, or adapted.”61 Thus, arrangements or covers of copyrighted musical works qualify as derivatives and receive copyright protection.62 However, derivative works can only be authored by the copyright holder (i.e., the composer), as it is one of the copyright holder’s exclusive rights.63 Unlike other exclusive rights conferred upon the owner of a copyrighted musical work, there is nocompulsory license for derivative works.64 This allows the holder of a copyright in a musical work to refuse or condition the creation of a derivative work on unequal or even unconscionable terms, such as requiring the performer to sign over all rights in the derivative work.65 Related to the derivative work problem, a new issue has emerged since the inclusion of sound recordings in the Copyright Act of 1976: sampling—”the act of taking a portion of one sound recording and reusing it as an instrument or an audio recording in a different song or piece.”66 For example, the modern genres of hip hop and rap both depend heavily on sampling for musical expression.67 Yet, sampling was quickly blocked by the courts. In Grand Upright Music, Ltd. v. Warner Brothers Records, the Southern District of New York held that Biz Markie’s rap song “Alone Again” impermissibly sampled a portion from Gilbert O’Sullivan’s “Alone Again (Naturally).”68 The Court held—devastatingly for genres like rap—that sampling without permission from the original copyright owner constituted blatant copyright infringement.69 Obtaining licenses for every sample presented a significant logistical and financial burden for rap artists.70 And unlike other parts of music copyright, there is no compulsory license for sampling (i.e., reproducing the sound recording); it is instead up to the copyright owner’s discretion whether to license the work or not, and to name the price.71 This forced rap artists to change how they create music or risk copyright sanctions.72 Indeed, the challenges posed by copyright to Black artists have led many to alter their creativity or leave music entirely.73 A third way in which U.S. copyright law has not equally protected racial minorities’ creative works is in requiring a known, recently alive author to gain copyright protection.74 Many centuries old, traditional Indigenous and non-Western songs and arts have communal or unknown creators.75 U.S. copyright law requires a known author and only protects works for a limited period of time, leaving these important but ancient works in the public domain.76 While such works remain unprotected, others can exploit traditional music and arts for their own profit without worrying about copyright infringement claims.77 This facilitates the free commercial repurposing of Indigenous cultural symbols and practices.78 U.S. copyright law defines creative arts as endeavors that are at least partially about making a profit,79 but this commercial approach is at odds with other artistic traditions. For example, Indigenous and non-Western societies around the globe value music as integral to their communities’ culture, and for non-commercial purposes such as medicine.80 The commercial appropriation of Indigenous cultural expression can be especially harmful due to the spiritual or sacred nature of these works.81 Thus, in these three ways, copyright law’s structure poorly serves living musical traditions.82 In response to the inequality perpetrated by Western copyright laws, other countries have started providing more robust copyright protections for diverse and Indigenous creative arts. In Senegal, for example, the government passed legislation specifically protecting folklore from unauthorized use in 1973, requiring royalty payments when using folklore works.83 Meanwhile, Qatar protects national folklore and assigns authorship to the state to prevent improper use or commercial exploitation of traditional works.84 In Brazil, copyright law specifically provides protection for performers, including those performing folklore expressions.85 Azerbaijan does not protect works of folklore under copyright, but instead protects these works under a separate law entirely.86 Similarly, Ethiopia includes tangible and intangible cultural heritage under its cultural heritage protection law, which prevents uses of traditional artistic expressions and works that impair their historical, scientific, or artistic value.87 Many other countries at least acknowledge the special position of traditional knowledge under copyright and patent law, if not provide active protection for it.88 In stark contrast, U.S. copyright law and international copyright laws 89 have generally failed to provide protections for traditional and non-Western forms of cultural expression. The very limited exceptions are for Native American works, which are somewhat protected under false advertising and trademark law, but not copyright law.90 The Indian Arts and Crafts Act of 1990 prohibits misrepresentation of goods as Native American or Alaska Native goods.91 Alaska has adopted a similar Alaska Native handicraft certification program.92 Under its power to investigate unfair trade practices, the Federal Trade Commission (“FTC”) has investigated cases of companies falsely claiming a good is made by Native American people.93 The United States Patent and Trademark Office (“USPTO”) also created a Database of Native American Tribal Insignia as a reference tool of official tribal insignia for trademark examiners to deny trademarks falsely suggesting a connection with Native American tribes.94 While these initiatives are a worthy start,95 they focus on unfair competition and trademark law, leaving the poor protection for Native American works under U.S. copyright law untouched.96