COLOR OF CREATORSHIP – Greene Review

Vol. 11, No. 1 (June 2022), pp. 5-11 

THE COLOR OF CREATORSHIP: INTELLECTUAL PROPERTY, RACE, AND THE MAKING OF AMERICANS, by Anjali Vats. Stanford University Press, 2020. pp. 296, Hardcover, $90, Paperback, $28. 

Reviewed by K.J. Greene 
Southwestern Law School 
kjgreene@swlaw.edu 

Anjali Vats’s book THE COLOR OF CREATORSHIP is a very welcome and powerful addition to the burgeoning field of race/gender studied of intellectual property (“IP”). Just two decades ago, no legal scholarship addressed the racial divide in IP protection. The economic analysis of the law was firmly fixed as the dominant framework for understanding IP. 

In the intervening years, I and scholars like Professor Lateef Mtima pioneered the analysis of race and intellectual property. My work was the first to apply a “critical race theory” (“CRT”) lens to IP issues. My article “Copyright, Culture and Black Music: A Legacy of Unequal Protection” was the first of its kind to examine the ways in which copyright law and doctrines such as originality, fixation, the idea-expression dichotomy and copyright formalities operated to deprive Black creators of copyright ownership and enforcement.¹ Years later, my scholarship applied an explicitly CRT—and intersectionality lens—to other IP issues, including trademark law and to the right of publicity.² 

The tributaries of this work on race and IP law, to which Professor Vats’s book ably contributes, are arguably the most dynamic examinations of IP law, necessitating an interrogation of IP doctrine and policy that go far beyond the mundane analysis of case law and esoteric theoretical IP approaches common in much scholarship in the field. Such traditional scholarship draws few, if any, connections to real world IP problems or to how IP re-marginalizes marginalized communities.³ Racialized inequalities are firmly baked into the IP cake, not simply relics from the past. A stark reminder of this dynamic is the Wall Street-driven feeding frenzy for legacy song catalogs—catalogs created by Black artists but now monetized by Wall Street money men.⁴

One of the core theses of Professor Vats’s book is “that the outcome of individual legal cases involving creators of color is less important than how doctrinal standards were forged through epistemically raced conceptions of citizenship” (p.7). Vats’s focus on citizenship is a unique contribution of her book to the legal literature on race and IP. In Vats’s conception, the “mythical ideal” obscures whiteness and racial power….” (p.6). By looking at IP inequality through the lens of citizenship, a historically racist trope in law and politics, Vats’s work is highly effective in re-imagining the problem of race in IP, although perhaps the book is not quite as effective in shaping possible solutions to the problem, which is common critique of CRT scholarship. 

Despite the melting-pot rhetoric many of us were fed as children, if it was ever unclear that the model of an American citizen is a white person and probably a white male, the candidacy and presidency of Donald Trump dispelled any vestigial illusions. In Vats’s conception, IP’s “‘imagined communities’ do not reflect America’s melting pot ideal but instead systematically protect Whiteness as (intellectual) property” (p.9). This reflects a powerful, and historically irrefutable perspective ripe with potential for reforming the IP system to reflect values of equality and fair compensation—values lacking in today’s IP arena, as the treatment of Black artists illustrates. 

Professor Vats draws on historical examples, such as Thomas Jefferson’s assertion that African Americans lack the ability to be truly creative, and contemporary examples, such as the free pass the rapper/singer Pharrell Williams received in the “Blurred Lines” copyright infringement case. Skillfully weaving these stories as race narratives, an essential tool in the CRT toolbox, Vats’s book makes a valuable contribution to the legal literature on race and IP. 

Professor Vats posits that use of the citizenship paradigm and the “[c]ritical rhetorics of race” can challenge systems of oppression rooted in racial and colonial oppression (p.12). She urges critical race IP scholars to link forces with traditional critical race scholars and to use “all available tools to think through race and (neo) coloniality” (p.13). 

Vats, citing other IP scholars such as Professor Sibley, contends that “with the exception of few works”, IP race scholars tend to focus on case studies and stories to analyze IP race issues, and that these approaches “serve to further reinforce the message of consent” (p.14, quoting Silbey). While I agree that this is indeed the case, my own work in this area did not solely engage in case studies and litigation, but challenged the foundational norms of the IP system, including economic incentive theory and the legal frameworks and policies that have devastated African American artists. 

Professor Vats provides a compelling and unique analysis of one of the most talked about copyright infringement cases in recent times, known as the “Blurred Lines” case. In Professor Vats’s retelling of the case, the crucial issue of the participation (guilt) of Pharrell Williams, a Black artist, was swept under the rug to protect the legacy of Marvin Gaye. The racial “script” of the “Blurred Lines” case pitted Gaye, an innovative artist associated closely with the Civil Rights Movement against Robin Thicke, a White and, frankly, untalented singer who had never previously composed a hit song. Vats notes that the two Black singers on the “Blurred Lines” song, the rappers T.I. and Pharrell Williams, “act as props to Thicke’s …. predatory sexual fantasy” (p,19). 

The tangled battle of ownership and control, and race and gender landmines seen in the “Blurred Lines” case might be seen another way: it illustrates the depths of anger and frustration in the Black community over long-standing and continuing cultural appropriation by outside communities and the rampant theft of Black intellectual property. This anger is perhaps difficult for people outside of the African American community to gauge or understand. The genesis of my original work on IP and race was the Black barbershop, a locus of inquiry and interrogation of racial oppression. 

I would suggest that the “pass” Pharrell Williams received in the “Blurred Lines” case from activists (and ordinary citizens) in the Black community was less about Williams’s actual participation in the infringement and more analogous to the reaction of many African Americans to the O.J. murder verdict. The perception of many was, as I recall Professor Mtima saying “finally our team won one”. Professor Vats posits that the “Blurred Lines” case is “a complex negotiation among Black and White publics from the soul and post-soul generations,” i.e., a conflict between soul and hip-hop (p.21). However, I believe this contention misses the mark. In fact, there is no daylight between hip-hop and soul—both artforms are based on the Blues, the mother of all. 

And while Vats correctly notes that the “Blurred Lines” song was not sued for digital sound sampling but for “feel,” at heart the dispute is about cultural appropriation, a claim not recognized in copyright law. The outsized role that Robin Thicke played in the “Blurred Lines” song and video all but assured that, from the perspective of the Black community at least, this was a theft of cultural property, reinforced by the iconic presence of Marvin Gaye. Given these circumstances and the historic pattern of the theft of Black artistry, it is not surprising that the African American community would treat Pharrell Williams, a member of the community steeped in intercultural borrowing, differently than Thicke, an interloper with no connection to the community. 

I greatly enjoyed Professor Vats’s exploration of the artist Prince in connection with ideologies of race and power. Professor Vats notes that Prince was not the first Black artist to challenge the racialized power structures that were and still are the American music industry—an industry innovated and dominated by African American artistry, but controlled by White executives. As she states, “Prince was neither the first nor the only artist to raise objections about the politics of race and intellectual property or race and inequitable contractual arrangements” (p.159). 

While Prince is rightfully celebrated as an innovator in his own right, much of his musical production, persona and oppositional stances to domination by elites were very much in line with a long tradition of his Black forbears. James Brown, who had a profound musical influence on Prince–and indeed every musician who plays Black music–was also famously protective of his output, and fiercely independent and entrepreneurial. James Brown, like Prince, refused to hew to standard release dates and formats dictated by major record labels. James Brown, like Prince, stringently and stridently railed against sampling of his music, stating “everything on my record is mine.” 

However, the great James Brown did not escape from exploitation on an economic level—Brown was saddled with absurdly low royalty rates from the major record labels. His plan to “stick it to man” was constrained by the power and racialized dynamics of the music industry. Sam Cooke, too, refused to bow to the standard (i.e., exploitative) practices of the American music industry. He died under circumstances which are still unresolved today. 

Professor Vats examines Prince’s epic conflict with his record label (and my former client) Warner Brothers in vivid terms that add richly to the literature around race and contracts. One could counterpose Prince’s treatment by Warner Brothers with that of another musical innovator (and major influence on Prince), Jimi Hendrix. Both Prince and Hendrix played guitar, but one, Prince, landed a major record deal with significant financial benefit, while the other received completely something else. In 1965, Hendrix signed the infamous “PPX” contract with music producer Chapin that conveyed ALL of his output from 1965 to 1969 for the paltry sum of a one dollar and a one-percent royalty rate. The PPX contract would go on to be litigated over twenty years after Hendrix’s death in 1970 (Hendrix had signed multiple contracts conveying the same rights to other labels). 

Contrast Hendrix’s PPX deal with Prince’s 1992 Warner Brother’s contract, reported at the time to be the largest in history at $100 million, and one could argue that real progress had been made in closing the racial equity gap.⁵ However, either Prince’s lawyers did not explain recording industry economics to him, or perhaps he simply did not want to listen if they did. Prince’s Warner Brothers contract was not a $100 million contract. Rather, it was a hypothetical $100 million contract, a heavily conditional deal that was based on “Purple Rain”-level sales—sales Prince never achieved after “Purple Rain”.⁶

And of course, once Prince changed his name (trademark) to an unpronounceable symbol and left his record label, his sales plummeted to a mere trickle. Prince ultimately effected termination of his grants to Warner Brothers, and promptly resigned a distribution deal with—wait for it—Warner Brothers.⁷ It is still today the case that only major record labels can ensure record sales across the United States, and in Berlin, Buenos Aires, and Tokyo. Professor Vats posits that Prince’s name change was “emancipatory”, but the later facts at least perhaps show otherwise. 

Vats notes that Prince’s “maximalist” copyright stand drew the ire of critics angered by his many restrictions on use of his music and his no-sampling policy. Many of us as academics writing about race in the IP arena and advocating for corrective justice have faced similar criticism—e.g., for advocating for expanding protection of African American creatorship to “finally get a piece of the pie.” The abstract conception of the “public domain” looks like a very different creature when one’s works have been constantly dedicated to it under arcane copyright doctrine and hostile judicial declarations. 

However, these critics fail to grasp that for Black artists like James Brown and Prince, having climbed to the top, they see no reason they should not play the game just like the major record labels and videogame studios, who are, after all the paradigm of copyright maximalists. These are companies that pay a pittance of the revenues generated for digital streaming, revenues powered by hip-hop music and Black rappers, and who appropriate the dances of Black teenagers on the internet without credit or compensation. 

At its heart, these dynamics are part and parcel of capitalism and the altar of profit. The Motown label, built by an African American, was also known as one of the most rapacious. An alternative narrative, articulated by James Brown himself is that when a race of people has been “’buked and scorned”, they get “tired of articulated beatin’ our head against the wall and workin’ for someone else.”⁸ 

I would like to conclude with a few words about Professor Vats’s exploration of trademark and race. Citing Professor Schur, she notes that the doctrine of consumer confusion in trademark is more than just a legal doctrine: the doctrine is “also a metaphor for understanding the intersecting relationships among the reasonable consumer, national identity, and racial feelings” (p.65). This argument is certainly borne out in the historical use of trademark law as a leading perpetrator of anti-Black imagery. 

My scholarship was the first to train a CRT lens on trademark law, and posited that trademark law protected and thereby promoted racial stereotyping, to the level that racist trademarks were central to the project of racial subordination in the United States.⁹ The cumulative effect of racist trademarks, in an era where Americans woke up with Aunt Jemima and Ratus, the Cream of Wheat chef, brushed their teeth with Darky toothpaste, took a chaw of N-word Hair Tobacco, and had dinner with Uncle Ben while watching Amos & Andy on TV cannot be overstated. In this sense, from a CRT perspective, trademark law did far more damage in promoting anti-Blackness than even the “coon” songs of the minstrel era. 

In THE COLOR OF CREATORSHIP, Professor Vats has created a thoroughly intriguing and scholarly exploration around issues of race and IP. Her book is chock full of insights, and the stories she recasts, whether about the “Blurred Lines” case, the racialized digital sound sampling wars or the artist Prince and his fight against Warner Brothers. CRT is a powerful tool for exposing the many gaps in IP protection that have long plagued communities of color, particularly the Black community. Vats has outlined the many ways that IP, like other forms of law, can constitute a mask that covers up domination under the guise of white supremacy. 

CRT is indeed perhaps the only tool in the analytical arsenal that can deconstruct the mythology of race-neutrality and contextualize the conduct of White judges in assessing IP protection and ownership for marginalized communities. The core tenets of CRT—the permanence of racism, “insiderism”, the fallacy of race-neutrality and colorblindness, the reality of white privilege and whiteness as property, and the need for interest convergence—are ably explored in Professor Vats’s book through the use of the narrative. 

With this fascinating and important book, I believe that Professor Vats takes us one step closer to the elusive goal of copyright justice, and toward a world where “Black Artists Matter” is more than a mere slogan on a poster. 

Suggested Citation: 11 The IP Law Book Review 5 (2022).

© 2022 K.J. Greene

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1. See K.J. Greene, Copyright, Culture, and Black Music: A Legacy of Unequal Protection, 21 Hastings Comm. & Ent. L.J. 339 (1999).
2. See K.J. Greene, Intellectual Property at the Intersection of Race and Gender: Lady Sings the Blues, 16 J. Gender, Social Poly’ & the Law 365 (2008).
3. See Carys J. Craig, Critical Copyright Law and the Politics of IP, in RESEARCH HANDBOOK ON CRITICAL LEGAL THEORY, Emilios Christodoulidis, Ruth Dukes, and Marco Goldoni, eds. (Edward Elgar Publishing, 2019). (2019). Articles & Book Chapters. 2715, noting that critical “IP scholarship effectively generated a resurgence or ‘second wave’ of critical legal studies (CLS) critique and activism, at least in substance if not in name.”
4. See Royalty Exchange, “WHAT’S BEHIND THE MUSIC CATALOG ‘GOLD RUSH’”, noting that in “the last five years, more than $9 billion has been spent on music catalogs by investors worldwide.” May 11, 2021, http://www.royaltyexchange.com.
5. The 1992 Prince-Warner Brothers contract “which included Warner/Chappell Music Publishing, covered six albums and allowed him to release up to one new album a year, a $10 million advance per album and a 25 percent royalty rate.” See Melinda Newman, “Inside Prince’s Career-Long Battle to Master His Artistic Destiny,” Billboard, April 26, 2016, (Issue 12, May 7, 2016) https://www.billboard.com/articles/news/cover-story/7348551/prince-battle-to-control-career-artist-rights.
6. See Goldies Parade, “Prince and the Warner’s Dispute”, noting that the “contract would indeed guarantee Prince a substantial $10 million advance with each album, as long that its preceding album shipped at least 5 million units—the amount Warner needed to recoup their advance, taking into account Prince’s royalty fee of 20%.”, https://goldiesparade.co.uk/new-power-generation/.
7. See Ed Christman, “Prince Gains His Catalog in Landmark Deal with Warner Bros–New Album Coming,” Billboard, April 18, 2014, noting that in “cutting  what appears to be a landmark deal, Prince has chosen to remain with the label that was the subject of his ire back in the 1990’s avoiding a risky and costly legal battle and still retains ownership of his catalog.” https://www.billboard.com/articles/news/6062423/prince-deal-with-warner-bros-new-album-coming.
8. James Brown, “Say it Loud, I’m Black and I’m Proud,” King Records (1968).
9. K.J. Greene, Trademark Law and Racial Subordination: From Marketing of Stereotypes to Norms of Authorship,” 57 Syracuse L. Rev. 431 (2008). This was the first law review article to examine trademark law through a CRT lens.