English 
Vol. 11, No. 1 (June 2022), pp. 1-4
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 Brian L. Frye
University of Kentucky College of Law
brianlfrye@uky.edu
Racism is a constant of American law. From the beginning, our legal system has incorporated and enforced racist values for racist ends. Often, the racism was obvious, intentional, and explicit. But just as often, it was subtle, institutional, and implicit. Sometimes, racism came as Jim Crow. Other times, it came as partition or precedent.1 And more often than you’d think, it came as intellectual property.
Superficially, intellectual property seems racially neutral. After all, neither the Patent Act nor the Copyright Act has ever even mentioned race, and the Lanham Act explicitly prohibited racist trademarks, until the Supreme Court said it couldn’t.2 But the substance of the law is in the application, which has always been plenty racist. The law said enslaved people couldn’t be patent owners because they couldn’t be citizens. It denied copyright ownership to Black authors because it didn’t recognize the value of their work. And it registered innumerable racist trademarks, never mind the statutory prohibition.
It was no accident. Racism wasn’t an incidental feature of intellectual property law. It was baked in, just like in every other aspect of American law, politics, and life. Everywhere you look, the impact of racism on intellectual property is obvious, if you are willing to see it. Hell, invention and creativity were racially coded concepts, designed to ignore minoritized people. And they knew it. Black intellectuals have always promoted Black inventors and authors, as a way of countering racist intellectual property narratives. Other racial minorities have done the same. It didn’t always work, but it helped. Maybe the dominant narrative is finally changing.
In her new book, THE COLOR OF CREATORSHIP, Anjali Vats explains how racial ideology shaped intellectual property and how intellectual property should change in order to expunge its racist history. Vats’s premise is that racism affected every aspect of intellectual property. She’s right. It’s just indisputable that racism determined who could claim intellectual property rights, what kinds of rights they could claim, and how they could exercise those rights. The question isn’t how racism affected intellectual property, but how it didn’t.
There’s a lot to like about Vats’s book. But I especially admired her framing of the problem. It isn’t just that intellectual property law is racially biased. It’s that intellectual property law reflects and amplifies racially biased values. We say that intellectual property is intended to promote innovation, but then define innovation in racially coded ways. Knowledge produced in a laboratory is science, the kind of innovation protected by patents, but knowledge learned by practice is “traditional,” and not the kind of thing patents protect. Of course, reproducing traditional knowledge in a laboratory turns it into science. Similarly, copyright protects lyrics and melodies, the parts of a song you can transcribe, but doesn’t usually protect rhythm or style, even though they are essential to a compelling performance. Trademarks literally police social meaning, often defining and enforcing racialized categories, even though racist marks were supposed to be unregistrable.
As a consequence, intellectual property tends to recognize and protect the kinds of things White people create and desire. It internalizes White values and reflects White preferences. Ironically, when minoritized people innovate and create things White culture doesn’t understand, intellectual property law tends to either ignore, punish, or copy them. Obviously, it’s better to be ignored than punished, but both are a drag. And while it’s good to be copied, it’s better by far to get paid.
Anyway, Vats’s big picture point is that the racialization of intellectual property is only the same as it ever was. A particularly chilling example is Thomas Jefferson’s dismissal of Black creativity in his book NOTES ON THE STATE OF VIRGINIA, which Vats quotes at length, in order to highlight how it encapsulated the received wisdom of its day:
Comparing them by their faculties of memory, reason, and imagination, it appears to me, that in memory they are equal to the whites; in reason much inferior, as I think one could scarcely be found capable of tracing and comprehending the investigations of Euclid; and that in imagination they are dull, tasteless, and anomalous (pp.36-37).
Vats forcefully observes how Jefferson’s gloss on innovation became the standard for intellectual property protection, subtly incorporating its prejudices into the law. I would have considered following Jefferson’s appalling calumnies with Benjamin Banneker’s wise and generous rejoinder:
I apprehend you will readily embrace every opportunity to eradicate that train of absurd and false ideas and oppinions which so generally prevails with respect to us, and that your Sentiments are concurrent with mine, which are that one universal Father hath given being to us all, and that he hath not only made us all of one flesh, but that he hath also without partiality afforded us all the Same Sensations, and endued us all with the same faculties, and that however variable we may be in Society or religion, however diversifyed in Situation or colour, we are all of the Same Family, and Stand in the Same relation to him.3
Banneker enclosed his recently published almanac, which Jefferson grudgingly praised. But Jefferson still considered Banneker an unusual exception, and even questioned whether he actually wrote the almanac. There’s nothing Banneker could have done to overcome Jefferson’s racist double standard. As Vats explains, “In a move that exemplifies emotional capitalism and anti-Blackness, Jefferson not only made it acceptable to link race, creatorship, and public feelings; he made it intuitive and compulsory” (p.38).
Fast forward 250 years and little had changed, as the Supreme Court continued to apply the same racist double standard. When Acuff-Rose sued Luke Campbell of 2 Live Crew for his parody of Roy Orbison’s song “Oh, Pretty Woman,” the Supreme Court correctly held that it was a non-infringing, but for entirely the wrong reasons. According to the Court, Campbell’s song was fair use only because he needed to copy in order to parody, suggesting not only that Campbell was less creative than Orbison, but also that other kinds of copying might not be fair use. Even worse, the Court patronizingly dismissed Campbell’s song as low-quality vulgarity. “The Supreme Court’s decision to craft Acuff-Rose narrowly reinscribes race liberal creatorship, allowing space for Black creativity only within narrow bounds determined on a case-by-case basis by predominantly White and largely culturally anti-Black judges” (p.95).
Sometimes, criticisms of the intellectual property system simply object to the fact that minoritized inventors, authors, and businesses often receive less protection than Whites. While true, it’s unsatisfying, because it assumes that achieving racial justice requires more property rights when the opposite is usually the case. I was pleased to see Vats offer a structural critique of intellectual property, observing that racism pervades the system, not merely its application. Minoritized innovators can rightly object to the racial biases of intellectual property, even if they aren’t necessarily entitled to a valid infringement claim.
While Vats discusses disputes in every area of intellectual property law, I found her copyright examples especially compelling, perhaps because copyright is the most explicitly moralized form of intellectual property. While we admire investors and entrepreneurs, authors receive an extra helping of adulation. Refreshingly, Vats uses stories like the Marvin Gaye estate’s copyright infringement action against Robin Thicke and Pharrell Williams for “Blurred Lines” as an opportunity to reflect on its racial politics, not merely an opportunity to say the more copyright protection the better: “The racial justice conclusion that audiences ought to draw from the dispute over ‘Blurred Lines’ is not that more copyright can protect people of color, but that different copyright is necessary to push back against the underlying values and ideologies that shape copyright law” (p.20). Amen.
In sum, this is an excellent, timely, and rich book. Vats is right to draw our attention to the racialized ideologies that justify the various intellectual property regimes and enable institutions to rationalize their discriminatory application. I hope and believe it will inform the conversation going forward.
Suggested Citation: 11 The IP Law Book Review 1 (2022).
© 2022 Brian L. Frye
- See, e.g. Thomas W. Mitchell, Reforming Property Law to Address Devastating Land Loss, 66 Alabama L. Rev. 1 (2014); Justin SIMARD, Citing Slavery, 72 Stanford L. Rev. 79 (2020).
- Matal v. Tam, 582 U.S. __, 137 S. Ct. 1744 (2017).
- Banneker to Jefferson. https://founders.archives.gov/documents/Jefferson/01-22-02-0049