Patently Unfair: Racial Inequality Through the U.S. Intellectual Property Legal System

By Caleb L. Green, Esq.

It is no secret that injustice in the American legal system has oppressed racial minority communities, including the African-American community. While scholars have well-documented the disparate treatment of African-Americans in the criminal justice arm of our legal system, legal scholarship and advocacy often overlooks the inequalities in the civil legal system, specifically intellectual property law. This article briefly addresses some of the inequalities African-Americans have suffered though our intellectual property legal system.

The contribution of African-American creators, artists, and inventors, is undisputed. African American’s have made a lasting impression on various musical genres like jazz, blues, rock and roll. Louie Armstrong, George Washington Carver, Marvin Gay—these are a few examples of the many creators and inventors originating from the black community. However, historically, these same innovators have been on the short end when it comes to intellectual property protection.

What is intellectual property law?

Intellectual property law spans various intangible property rights, which provide economic incentives for creators. One example is Copyright law, which governs creative works of expression captured in a tangible medium, protecting works like sound recording, photos, and books from unauthorized reproduction, distribution, and public performance, so long as the owner secures a copyright registration through the U.S. Copyright Office. In contrast, U.S. trademark law protects consumers from confusion through the use of symbols, names, logos, and even sounds to distinguish goods and services in commerce. Similar to copyright owners, trademark owners can also register their trademarks with the U.S. Trademark Office. Additionally, right of publicity laws provide rights to use an individual’s name, image, or likeness, prohibits their unauthorized use, but does not require a formal registration. However, despite these legal frameworks and underlying rights, statutory limitations and complex requirements have historically contributed to dismantling the intellectual property rights of black creators.

Disparate treatment of black communities under the U.S. copyright regime

Under the U.S. Copyright system, African-American creators, namely music artists, have been routinely deprived of legal protections for various creative works. Copyright law is a complex legal field, with several formalities and rules in place to maintain copyright protection over your works. This was especially true under the 1909 Copyright Act, which included convoluted notice and publication requirements and caused much of the inequality to African-American creators. Many black artists were unfamiliar with these complex notice and publication formalities, causing their iconic songs and compositions to lose copyright protection and fall into the public domain for anyone to exploit. While the 1976 Copyright Act remedied several of these formality issues, its long-lasting impact on black communities is still felt today. Namely, notable black artists from the mid and early 1900s are still embattled with aggressive copyright litigation for their songs, recordings, and musical works.

Disparate treatment of black communities under the U.S. trademark and rights of publicity laws

In the modern era, similar injustices persist in the world of trademarks and publicity rights. Since the tragic murder of Trayvon Martin—a seventeen-year-old black youth from Florida—in 2012, opportunists have attempted to exploit the tragic murders of black individuals. For example, after the unfortunate murder of Breonna Taylor, numerous retail companies began to sell clothing and apparel bearing Ms. Taylor’s name, image, and likeness. Further, these companies compounded this misappropriation by filing several trademark applications bearing Ms. Taylor’s name, as well as other black victims of police brutality and violence, such as George Floyd and Trayvon Martin.

There are few safeguards to protect black victims from this kind of exploitation. Namely, many states do not recognize right of publicity rights for deceased individuals. Likewise, the rules governing trademark registrations only prohibit third-parties from registering the names of living individuals, with few exceptions. Accordingly, the families of these victims are often left without legal recourse and oftentimes must endure blatant exploitation of their loved one’s name, image, and likeness.

Conclusion

Unfortunately, solutions to the U.S. legal system adversely affecting black communities does not stop with criminal justice reform. Our civil systems must be analyzed for areas wherein remnants of injustice to racial minorities remain. Because most resources and attention are given to the criminal justice arm of the U.S. legal system, black communities oftentimes suffer civil injustices in silence. Moving forward, more resources and attention should be reallocated to address these issues in our intellectual property laws. This includes considering expanding post-mortem publicity rights, instituting safeguards to eliminate fraudulent trademark applications, increasing the level of scrutiny of copyright applications, and removing complex formalities to securing and renewing intellectual property registrations.

About the author
Caleb L. Green, Esq.

Caleb L. Green, Esq. is a William S. Boyd School of Law graduate, an intellectual property attorney at Dickinson Wright PLLC, and the Racial Justice Chair of the Las Vegas Chapter of the National Bar Association.

About this article

This article was originally published in the “Racial Justice” issue of Communiqué, the official publication of the Clark County Bar Association, (February 2021). See https://clarkcountybar.org/about/member-benefits/communique-2021/communique-february-2021/.

© 2021 Clark County Bar Association (CCBA). All rights reserved. No reproduction of any portion of this issue is allowed without written permission from the publisher. Editorial policy available upon request.

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