Skip to content

Copyright’s One-Way Racial Appropriation Ratchet

Elizabeth L. Rosenblatt

Vol. 53

December 2019

Page 591

This Article explores the implicit hierarchies inherent in copyright law, with particular attention to ways in which U.S. copyright statutes and judicial opinions incorporate racial bias into those hierarchies. By devaluing the inherently dialogic and incremental nature of meaning-making, current copyright law tends to create and perpetuate a fiction of “pure originality” that disproportionately valorizes creators and innovators identified as original or inventive over those identified as derivative. Statutes and court opinions often make this distinction between the “original” and the “derivative” in ways that reflect and amplify racial bias. Frequently, appropriation of the traditions, identities, ideas, expressions, or bodies of people of color is treated as “original” and given full statutory protection and the dignitary respect that comes with it. In contrast, appropriation by those same peoples is labeled “unoriginal” and denied both statutory protection and respect by the dominant culture. At the same time, informal forces such as risk imbalance, uncertainty aversion, and contractual traditions tend to widen the disparate impact of rules that may appear facially neutral. The result is the gradual shifting and consolidation of copyright ownership away from racial minorities and toward those who appropriate from those minorities. This Article identifies examples of copyright law’s one-way racial appropriation ratchet, discusses its doctrinal sources, and suggests that stronger exclusivity provisions under current copyright law are likely to exacerbate, rather than combat, racial inequalities. View Full Article

© Regents of the University of California. All rights reserved.