Why Copyright Law is Racist as Hell

Tuesday, October 1, 2019


Once you start to study The Law, if you have any basic deductive reasoning skills, you become quickly horrified when you see how deeply racism (and sexism, homophobia, transphobia...) is baked into the very fabric of our society through the laws and court decisions that have come down since our slave-owning forefathers wrote slavery into the Constitution. It's like getting an inside view, the sausage factory of racism, how the meat is made. An intro on racist-as-hell court decisions and laws is a blog post for another day, because today I'd like to talk to you about why copyright law, specifically, is racist as hell.


This blog post is inspired by the unbelievably cool talk I went to last week by Professor Anjali Vats, whose forthcoming book The Color of Creatorship: Intellectual Property, Race, and the Making of Americans is already on my Amazon pre-order list. That book will tell you a hell of a lot more about law, creativity, and racism, and in a much more eloquent way than I can in this post. But in the talk I went to she touched upon a case I've already written about here: the "Blurred Lines" case, wherein Marvin Gaye's estate sued Robin Thicke, Pharrell Williams, and T. Pain for infringing on Gaye's song "Got to Give It Up."





What I didn't write about in that post, and what I didn't see, because I certainly have blind spots that I'm working on, is that THAT CASE IS RACIST AS HELL. What Professor Vats highlights in her book is that, oftentimes in copyright infringement lawsuits, people of color are disproportionately the targets and the losers. For example, in the 80s and 90s, when rap and sampling (creating short clips using other peoples' songs) was becoming more mainstream, the people who were getting sued for using samples were people of color. See, for example, Grand Upright Music, Ltd. v. Warner Bros. Records Inc. wherein Biz Markie was sued for using a sample from singer, song-writer, and hair icon Gilbert O'Sullivan. That taking short clips of someone else's recording and turning it into an entirely new form of art was ruled criminal, but making a collage out of a mixture of other peoples' photos and drawings, for example, is considered fair use, reveals some undeniably racist undertones.


In the Blurred Lines case, race plays a more insidious role. Gaye's estate sued three people: Robin Thicke, Pharrell Williams, and T. Pain. I don't know about you but when I think back to the Blurred Lines era, when people were talking constantly and making parodies about how gross and sexist the song was, the subject of everyone's ire was Robin Thicke. He was arrogant, misogynistic, cocky - and that all may be true. However, in the fervor over Thicke, Pharrell and T. Pain's role in the creation of the song (whether positive or negative) was effectively erased. The conversation surrounding that lawsuit was largely focused on a white man, when it was involving music written mostly by people of color. That case is a microcosm of the general trend wherein people of color lose (even if they win, as in Gaye's case) because copyright is dominated by white narratives.

This got me thinking about the hypothetical case I envisioned in that same blog post between Princess Nokia and Ariana Grande. If you'll recall, Princess Nokia came forward pretty much immediately when Grande's "7 Rings" was released to call Ari out on stealing the flow from Princess Nokia's song "Mine." In my analysis of that hypothetical case, I said that Princess Nokia would have a tough time proving infringement in court, though her accusation is not unfounded based on cursory listens to both songs.





However, what I fully overlooked in that post were the very real, overt racial elements at play in that hypothetical lawsuit. Grande, who's Italian, has been under a ton of scrutiny for appropriating everything from her music to her skin tone to her tour outfits to the way she talks. That Ariana appropriated Princess Nokia's flow for her song "7 Rings," which debuted at number 1 on the Billboard Hot 100, would largely be par for the course based on those accusations. The implications of this would extend far beyond basic copyright infringement. It would be yet another white person profiting off the work of a person of color and garnering major fame and income off that work.

Obviously any accusation of copyright infringement against Ari for "7 Rings" has not been tried in court yet, but the mere fact that a white woman was able to catapult herself even higher into the stratosphere of world-wide fame off largely the same flow that did not garner a woman of color the same accolades is partially rooted in the fact that society so often undervalues the creativity of people of color while praising white people for the same (often stolen) creativity. Many other factors are at work here but I think we'd be missing the mark if we don't acknowledge the role that racism plays in copyright infringement cases.


Think I'm wrong? Feel free to drag me in the comments below. Or, better yet, write a rebuttal article and if it's any good I'll publish it. Email proselawblog@gmail.com.

Have any burning legal questions about pop culture or current events you want me to analyze? Pop it in the comments or slide into my DMs over on Instagram or Twitter.


sources:
[1] Anjali Vats, The Color of Creatorship: Intellectual Property, Race, and the Making of Americans (forthcoming).
[2] Jordan Runtagh, Songs on Trial: 12 Landmark Music Copyright Cases, Rolling Stone (June 8, 2016).
[3] Grand Upright Music Ltd. v. Warner Bros. Records Inc., 780 F. Supp. 182 (SDNY 1991).
[4] Williams v. Gaye, 885 F.3d 1150 (9th Cir. 2018).
*DISCLAIMER* Nothing I write on this blog should ever be taken as legal advice. This entire project is just me applying my limited knowledge of The Law to the news and trying my best to analyze it all. I am not an expert in anything. I don’t even have my JD yet.

1 comment :

  1. I do agree with everything said . Those black flying robes of judges in wide corridors, High walls of these huge structures that stand on pillars wide enough as you try to stretch yourarms around but your hands never meet on the shinyfloors you hear the footsteps of these immaculate foot soldiers talking in a strange language producing a cacophony that your ear drums arenot used to along they walk bowing and nodding to those black robes; and yiu ask yourself is here where justice clashes with common sense.is this where guidelines are structured for society in a language which society never understands. You will never meet justice here even though he resides here. He lives inside sonewhere hidden behind the impenetrable gates of procedures , law and motions.you need to remove Ypur gown of simplicity and common sense to even take a peek at working of this temple. Only the priets or medicine men with black robes can confer with justice so respect for them. Your head should bow with fear and admiration of these godly black robes as they are the chosen ones by the hands of justice . So respect fear and admire

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