English 
Vol. 11, No. 1 (June 2022), pp. 12-15
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 Rebecca Tushnet
Harvard Law School
rtushnet@law.harvard.edu
I begin this review with an anecdote apparently unrelated to IP: A pit bull used to be a dog generally considered appropriate for “little old ladies”—a gentle, undemanding companion. In the US, moral panics over pit bulls, as well as pit-bull-specific licensing requirements that led to dogs being seized from people who couldn’t pay the license fees and euthanized, emerged when young Black men started adopting pit bulls.1 The lesson: To a first approximation, all issues, especially all legal issues in the US, are racialized. A book like THE COLOR OF CREATORSHIP thus provides vital insights for understanding specific legal doctrines.
Vats focuses on the ruling trifecta of IP: copyright, trademark, and utility patent. This selection is of special interest to her project because the incentive-based justifications for utility patent and copyright are very different from the official American anti-deception/investment-protecting justifications for trademark. The racialization of creativity and inventiveness gets more attention in the book, even in the title, than the ways in which commerce is racialized, though Vats does not neglect the latter. The comparison suggests that it is trivial to observe that race matters to an area of the law; one must continue on to ask exactly how it matters.
And here is where a book series could answer questions that a single volume simply can’t. Vats uses some examples from outside the US, especially when discussing alternative possibilities for recognizing invention and traditional knowledge. American IP, like American law more generally, is often exceptionalist, but perhaps not so much in core doctrines such as originality and novelty. If other nations with other racial compositions and histories have similar doctrines, that could suggest that the IP doctrines themselves are not necessarily corrupt. It is rather the racially biased lenses that almost-all-white judges have brought to those concepts that have produced the worst offenses in which white appropriation was recognized as creation and Black creation defined out of existence. But Vats might well think that liberal conclusion doesn’t go far enough, since originality and novelty also support systems in which tradition seems to have little market value or protection against the market.
I want to make three points about Vats’s account of trademark law, which I found somewhat less convincing than her analysis of copyright and patent. First, Vats claims that “[t]he homogeneity of the ‘reasonable consumer’ coupled with the inability of people of color to file claims allowed the Doctrine of Consumer Confusion to become a vehicle for protecting White supremacy and Whiteness, even through race neutral language” (p.65). While I agree that the “reasonable consumer” is often just the judge’s image of himself (usually) with a shopping bag, I didn’t find much evidence directly connecting likely confusion as a doctrine with racialized results. Among other things, Vats does not show that there was a history of appropriation of Black trademarks—allowing Whites to profit from creating brand value while Blacks were expropriated—as there is with copyrightable creativity.2 The key mechanisms of inequality seem to have been the suppression of Black wealth-creation that minimized the number of valuable trademarks that Black businesses could develop and the related inaccessibility of courts to people of color. But trademark confusion itself doesn’t seem like a proximate or but-for cause of upholding White supremacy.
Second, Vats also intriguingly claims that trademark dilution law “functions, racially speaking, as a mechanism for mediating the white racial anxieties of the time, particularly around ‘mixing,’ in its artistic and identity forms” (p.24). Specifically, the book argues that the invention of dilution by Frank Schechter was justified by the need he perceived to avoid “the gradual whittling away or dispersion of the [trademark’s] identity” which is “eerily similar to the language of miscegenation and racial purity (p.102). I find her analysis perhaps more persuasive in the other direction: it seems plausible that white racial anxieties helped make the “trademark dilution” harm story more persuasive in all-white contexts.
The available litigated cases don’t seem to show suppression of depictions of racial mixing. Before federal dilution law existed, notable dilution cases instead focused on sexual anxieties; courts readily found pornographic or abject depictions of trademarks to be dilutive. The language of “mixing,” both for trademark dilution and racial discourse, pastes a surface scientism on what is really a moral distaste. Barton Beebe has deftly traced the way that Schecter invented dilution out of plain old unfair competition/free riding principles, but with an American empiricist gloss.3 Just as what matters in scientific racism is the racism, what matters in dilution is the dislike of free riding but borrowing pseudoscientific terminology can help lawmakers feel better about themselves.
Third, Vats suggests that trademark can also be a vehicle for reclamation, valuing Black lives and bodies. She argues that “[i]n a move that refused trademark law’s objectification and propertization of people of color, Marshawn Lynch claimed property rights in his own Black bestial body through the Beast Mode® clothing line” (p.25). I confess that I wasn’t able to distinguish this propertization, which she acknowledges is double-edged, from others that the book subjects to greater criticism.
For example, when Vats discusses the “Blurred Lines” case, including the participation of Black artists on both sides, she acknowledges that a racialized system must inevitably pit different disfavored groups and members of such groups against each other. (p.19). She characterizes Simon Tam’s attempt to register THE SLANTS for his band as participation in racist logics, understandably but futilely challenging hierarchies by trying to “own” THE SLANTS (p.120), but how does that differ from Lynch’s tactics? Vats calls Lynch’s refusal of NFL conventions about talking to reporters combined with his registration of his Beast Mode mark “(de)propertizing disidentification” (p.184), but his trademark is both propertizing and playing on identification with the violent/beast stereotype—the opposite of both the words the book uses. That doesn’t mean Lynch’s strategy is clearly productive or counterproductive for antiracist purposes, but I find the book’s deployment of these categories underdetermined in ways that limit their utility.
Lynch, Vats says, refuses the NFL’s symbolic ownership (p.180), which seems right, but there’s tension in presenting artists like Prince (pp.158-69) (who famously asserted copyright aggressively) and athletes like Lynch as heroic and only slightly problematic, while Tam is offered basically as an unwitting tool of white capitalism despite his reclamatory aims, which the book says can’t be achieved. Lynch profits from the stereotype of Black bestiality, but also provides that stereotype with reinforcement, though perhaps the marginal effects of that reinforcement are minimal. Indeed, at the end the book suggests that inclusionary, incrementalist changes within IP are fundamentally ineffective because they don’t disavow the concepts of exclusion and propertization. That might well be true, but it suggests that the framing of the book’s last section as reclamatory is at war with itself in some ways.
I want to end by emphasizing two thought-provoking and chilling points from the book: First, Vats points out that,
Through the embrace of restrictive laws against sampling and relegation of the works of people of color to the category of parody, the protections that courts afforded to non-whites increasingly became exceptional instead of ordinary moments of creativity that merited special protection instead of a categorical recognition of citizenship, personhood, and the capacity to create (p.87).
Campbell v. Acuff-Rose thus stands as a victory for black artists, but only as fair users and not as creators of equal dignity. This is an important point, and I would only add that we can recognize this dynamic without denigrating fair use. We do not need to propertize style to recognize the contributions of Black artists; instead, we should note how white claimants like Saul Steinberg have been allowed to lay claim to broader swathes of style than Black claimants.
Second, Vats highlights the racialization (and gendering) of who is allowed to “move fast and break things,” in the phrase that Facebook’s Mark Zuckerberg made famous. “Black urban youths who participated in hip hop and rap subcultures were cast as threats whose presence marked zones of decay and ‘social death,’ while White suburban youths who participated in technology and Internet subcultures were cast as innovators whose presence marked zones of flourishing and ‘reproductive futurism’” (p.89). The passive voice here hides some attribution: White “free culture” activists like Larry Lessig celebrated both groups, while others like Siva Vaidhyanathan were decidedly friendlier to the former, but judges, legislators, and regulators definitely proved more hostile to the former. Uber and Facebook got to break the law in the course of remaking the law to favor their operations, while powerful men called for the military to shoot Black Lives Matter protesters to stop “looting” , and around the country legislatures pass laws to make it easier to kill protestors with cars. Music sampling is theft, but Bill Gates trespassed into University of Washington facilities to get computer access to start his career and is now a billionaire with the power to reshape entire school systems to his preferences. Vats correctly demands that we pay attention to the privileges afforded innovative white lawbreakers alongside the disadvantages inflicted on innovative Black ones.
Suggested Citation: 11 The IP Law Book Review 12 (2022).
© 2022 Rebecca Tushnet
- See, e.g., Bronwen Dickey, PIT BULL: THE BATTLE OVER AN AMERICAN ICON, 140-49 (Penguin Random House, 2016).
- For example, although Madam CJ Walker held valuable trademarks, a major biography does not seem to find that she struggled with unredressable infringement or counterfeiting. A’Lelia Bundles, ON HER OWN GROUND: THE LIFE AND TIMES OF MADAM C.J. WALKER (Scribner, 2002).
- Barton Beebe, The Suppressed Misappropriation Origins of Trademark Antidilution Law: The Landgericht Elberfeld’s Odol Opinion and Frank Schechter’s “The Rational Basis of Trademark Protection,” in INTELLECTUAL PROPERTY AT THE EDGE: THE CONTESTED CONTOURS OF IP, 59 (Rochelle Cooper Dreyfuss and Jane C. Ginsburg, eds., Cambridge University Press, 2014).