Creating While Black: A Racial History of Copyright in the US

This is a book project that aims to map out a racial history of copyright and authorship in the US, from the 18th century to the present. My working hypothesis is that conceptions of authorship and creativity rooted in hegemonically white norms have routinely been mobilized over the past 200-plus years in order to shape (and reshape) US copyright law, with the result — sometimes quite deliberately — being the marginalization of black forms of cultural expression and/or the aesthetic and economic appropriation of such forms by whites.

The precise shape of the final project is still very much in flux. Right now, though, I am aiming to undertake the following historical case studies:

  • Phillis Wheatley, a slave of the late 18th century, who had to undergo an extensive oral examination by a panel of eighteen prominent white Bostonians (including John Hancock, and both the governor and the lieutenant governor of the colony) in order for a book of poems that she had written to be published under her name.
  • The impact of the gramophone on musical copyright (which had previously been limited to sheet music) in the late 19th and early 20th century, especially with respect to black musical forms (such as jazz) that were extraordinarily popular in terms of record sales, but “failed” to fit the existing norms for sheet music.
  • Folklorist and ethnomusicologists, John and Alan Lomax (father and son, respectively), who rose to fame by recording and archiving a wide variety of rural folk and blues musicians in the early 20th century, but who also laid sole claim to the copyrights for many of the works they recorded, and profited handsomely as a result.
  • The radio-related copyright “wars” of the late 1930s and early 1940s, during which the National Association of Broadcasters founded a new performing rights organization (BMI) as a way to circumvent the royalty rates that the then-dominant such organization (ASCAP) was charging for broadcast performances of recorded music. Part of BMI’s early strategy was to secure licensing rights to musical genres that ASCAP had largely ignored — especially folk, country, blues, jazz, rhythm ‘n’ blues, and black gospel.
  • The introduction of auteur theory in France in the 1950s, and its subsequent spread to the US in the 1960s, as a way of reframing what is arguably the most collective of all major art forms — film — as a creative practice that is best understood through the lens of singular authorship.
  • The development of “scratching” (and, a bit later, digital sampling) in the 1970s in the context of early hip-hop — a form of musical creativity that dramatically challenged existing forms of copyright by incorporating portions of pre-existing commercial recordings into new musical texts.

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