The Color of Creatorship
Intellectual Property, Race, and the Making of Americans
Anjali Vats


Contents and Abstracts
Introduction: Creating Intellectual Property, Creating Americans
chapter abstract

The Introduction provides an overview of the book project, lays out the analytic concepts that the argument employs, and offers a précis of the remaining chapters of the book. The organizing concept for the book, intellectual property citizenship, provides a frame for reading how American public culture tends to imagine and invoke idealized intellectual property actors in narratives about national identity and belonging. Intellectual property citizenship is bounded through racialized understandings of citizenship that, in turn, shape the category of creatorship. Tracing the racial scripts through which citizenship is defined offers a method that makes visible the racial investments of creatorship. Before turning to the chapter précis, the Introduction examines the dispute over "Blurred Lines" as an example of the complex landscapes of intellectual property citizenship, creatorship, and racial justice in the copyright context.

One: The Intellectual Property Citizen
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Chapter One shows how intellectual property and citizenship have historically been linked via race. In the context of copyright law, true imagination emerged, through the trial of Phillis Wheatley and cases such as Chaplin v. Amador (1928) and Supreme Records v. Decca Records (1950), as a racialized standard for separating white creativity from people of color creativity. In the context of patent law, the notion of human progress developed, through World's Fairs, into a means of normalizing the separation of white intelligence from people of color intelligence. Finally, in the context of trademark law, the emergence of the consumer gaze produced, in cases such as Aunt Jemima Mills Co. v. Rigney & Co. (1917) and Gardella v. Log Cabin Products (1937), structural and racial distinctions between producers/consumers and goods for circulation. These articulations of intellectual property law set the stage for future inferential racism.

Two: The Race Liberal Intellectual Property Citizen
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Chapter Two grapples with creatorship/infringement in the period of racial liberalism. In copyright law, true imagination implicated public cultural conversations around sampling. Copyright cases such as Grand Upright Music, Ltd. v. Warner Brothers Records, Inc. (1991), Campbell v. Acuff-Rose Music, Inc. (1994), and Suntrust Bank v. Houghton Mifflin Co. (2001) displaced racial anxieties about urban Blackness onto legal categories of "originality" and "transformativeness." Patent law replicated the nature/science binaries that underpinned the category of human progress through the articulation of standards of "human ingenuity." This category, via cases such as Diamond v. Chakrabarty (1980) and Moore v. Regents of the University of California (1990), propertized people of color and hindered them from protecting their own inventions. Finally, trademark law expanded the scope of the consumer gaze in structuring social relations, as dilution law became a mechanism for mediating white racial anxieties associated with artistic and racial "mixing."

Three: The Postracial Intellectual Property Citizen
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Chapter Three examines creatorship in the period of postracial creatorship/hyperracial infringement. Matal v. Tam (2017) marked the rise of racial libertarianism in the context of trademark law. Yet the Slants' victory was a loss for indigenous peoples, who lost ground in eliminating racist mascots. Moreover, it made people of color responsible for managing racism while leaving the consumer gaze undisturbed. In patent law, white gatekeeping of the category of human progress continued through Novartis v. Union of India and Others (2013), in which the United States demonized countries like India for refusing to abide by (neo)colonial intellectual property agreements. Finally, Golan v. Holder (2012) constructed and expanded a white nationalist public domain, by finding domestic copyright interests to be more important than international ones, particularly by invoking familiar myths of true imagination. Together, these examples show how postracial creatorship operated to reinforce connections between race and intellectual property.

Four: Rescripting Creatorship, Rescripting Citizenship
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Chapter Four considers resistance among people of color to the whiteness of creatorship in three case studies. In a refusal of copyright law's imaginings of intellectual property citizenship, Prince changed his name to the Love Symbol, a marker of his refusal to be property instead of creator. In order to contest Western commodification of yoga, Indians and Indian Americans developed a new language of creatorship that transformed technical legal language into a tool for claiming ownership of cultural property. Similarly, the Indian government created a digital database, the Traditional Knowledge Digital Library, as a means of decolonizing Euro-American patent regimes. Finally, in a move that refused trademark law's objectification of people of color, Marshawn Lynch claimed property rights in his own body through the Beast Mode® trademark. Lynch monetized the stereotype of the Black beast as a way of asserting his rights to full intellectual property citizenship.

Conclusion: Decolonizing Creatorship and Remaking Personhood
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The Conclusion addresses how scholars, practitioners, and activists might craft practical strategies of anti-racist and anticolonial engagement with intellectual property law that radically confront the underlying politics of race, national identity, and citizenship but do not become hopelessly mired in deconstructionist impulses. These practical strategies must revolve around honoring ethical, human-centered value systems across fields of racial identity. The Conclusion turns to decolonial theory as a starting point for thinking about undoing and rebuilding the racial scripts and racial feelings that underlie intellectual property law as well as creating new and fundamentally racially and economically equitable copyright, patent, and trademark policies. Most importantly, decolonizing intellectual property law requires confronting and dismantling the modernity/coloniality binary. The chapter concludes by returning to "Blurred Lines" and contemplating the politics of intellectual property fugitivity as organizing the formation of new ethical systems to inform copyright, patent, and trademark law.