Intellectual property law may seem an improbable context for studying issues of racism in American history and culture. But Boston College faculty member Anjali Vats asserts in her recently published book, The Color of Creatorship: Race, Intellectual Property, and the Making of Americans, that the evolution of United States copyright, trademark, and patent law is not racially dispassionate, and has been greatly impacted by how we understand American citizenship.
Furthermore, Vats argues that U.S. IP law continues to be shaped by racially exclusive categories, as evidenced by well-documented and publicized controversies over music, pharmaceuticals, and traditional knowledge. A key factor, according to Vats, is an underlying national belief that milestones like the civil rights movement and the election of Barack Obama made America into a post-racial, 鈥渃olorblind鈥� society.
Associate Professor of Communication Anjali Vats
Addressing copyright, trademark, and patent law over a period of 200 years, The Color of Creatorship aims to 鈥渦nderstand how race operates in those legal spaces over time, and across eras of purported racial progress,鈥� said Vats, an associate professor of communication and African and African Diaspora Studies, with a courtesy appointment at Boston College Law School. 鈥淲hat we see are the same ideas about race repeated over time: People of color are formally excluded as knowledge creators.
鈥淢y intent was to ask what kind of stories IP tells, and where we see race, and what race looks like in the context of doctrinal decisions,鈥� said Vats, who teaches courses in the areas of race, rhetoric, law, and media studies. 鈥淏ecause if we鈥檙e talking about practicing IP law, there are legal tests involved, and if courts apply those legal tests, they should theoretically get race-neutral or racially colorblind outcomes. But in practice, that鈥檚 not really how the law works. The deck seems to be stacked against people of color.鈥�
Vats examines what she calls 鈥渋ntellectual property citizenship鈥�: that the logic of racism and IP law鈥攁nd the outcome of IP decisions鈥攊s best understood in terms of who is viewed as a good or bad 鈥淚P citizen.鈥� Over time, she explained, the figure of the white inventor or innovator has been integrated into the national ideology as a crucial contributor to the nation鈥檚 moral and economic development鈥攁 good IP citizen.
To illustrate IP citizenship, Vats cites a 2018 federal appeals court decision upholding a copyright infringement verdict against white singer Robin Thicke, along with producer Pharrell Williams and producer/rapper T.I. (Clifford Harris Jr.)鈥攂oth of whom are Black鈥攐ver Thicke鈥檚 controversial 2013 song, 鈥淏lurred Lines.鈥� The court agreed that the song was copied from the late Marvin Gaye鈥檚 1977 classic 鈥淕ot to Give It Up.鈥� Jurors originally awarded Gaye鈥檚 family more than $7 million; the award was later trimmed to a still-historic $5.3 million.
It would seem a positive outcome, said Vats: Thicke, accused of promoting misogyny in 鈥淏lurred Lines,鈥� is judged a 鈥渂ad鈥� IP citizen for borrowing from Gaye, a Black American and civil rights icon, who becomes the centerpiece for the case. But Pharrell and T.I. are effectively 鈥渆rased鈥� as IP citizens, she said, and the supposed redemption of Gaye overlooks his troubled history with women and contentious views on gender politics.
鈥淧art of the reason Gaye 鈥榳ins鈥� is because he stands for the success of the civil rights movement and the validity of colorblindness in America, even though he had demons that we can鈥檛 necessarily fairly dismiss,鈥� said Vats. 鈥淚n short, it鈥檚 complicated, although we think this is a clean case.鈥�
Another case study addresses trademarks in a period of post-racial creatorship. An all-Asian, Oregon-based rock band called The Slants sought to protect its name and filed for trademark protection, but the U.S. Patent & Trademark Office declined, citing t