“Fair Use” and the Circulation of Racialized Texts
It was white theft of black culture that most moved the group to anger and eventually to action.
—Derrick Bell, Gospel Choirs
In his groundbreaking Harvard Law Review article examining post–Civil Rights era Supreme Court decisions, Derrick Bell challenges the normative assumptions of legal discourse.1 Anticipating concerns articulated by participants from the first CRT workshop, Bell predicts that CLS's deconstruction of rights discourse will prove insufficient to challenge the racism and racialization of the post–Civil Rights era. Even though Bell began his career within the Civil Rights Movement, he argues that conservative (and even some liberal) responses to the NAACP's legal victories necessitate a revised strategy for transforming social and cultural relations. To illustrate the limits of existing civil rights legislation, Bell creates fictitious interlocutors, such as Geneva Crenshaw and Jesse Semple, who show the limited improvement in the material conditions of ordinary or average African Americans. These writings layer disparate voices into conversations that ebb and flow to reveal an ironic reading of legal discourse.
Bell's characters examine the violence and inequalities that found American jurisprudence. In the opening chapter of And We Are Not Saved (1987), Bell relies on a science fiction device to transport Geneva Crenshaw, a movement lawyer who now questions the NAACP's litigation strategy, back to the Constitutional Convention of 1787. Her journey's purpose is to convince the delegates to remove the document's implicit acceptance of slavery.2 The dialogue between Crenshaw and the founders explores how traditional doctrinal remedies to racism respond to the symptoms of inequalities, not their causes. Bell's writings suggest that the founders’ commitment to property rights undermined the constitutional promise of freedom and equality. The fictional Crenshaw asks the founders: “Do you not mind that your slogans of liberty and individual rights are basically guarantees that neither a strong government nor the masses will be able to interfere with your property rights and those of your class?”3 In Bell's retelling, the founders cannot conceive of any way to create a constitutional structure that could deracialize property law and also provide for a stable government.4 This decision, according to Bell, created a permanent disadvantage for African Americans and placed property law above civil rights law within American legal discourse. Throughout his provocative writings, Bell returns to property rights and economic inequalities as the fundamental challenge of the post–Civil Rights era.5
For Bell, cultural products, whether music, art, or literature, document and serve as catalysts in the African American struggle for political and economic equality. In Gospel Choirs (1996), Bell relies on gospel music to anchor his legal critique and demonstrate how this musical form continues to provide spiritual sustenance. Bell does not, however, ignore hip-hop's importance to the post–Civil Rights generation.6 As one element of the book's thought experiment, Bell imagines in the chapter “Racial Royalties” that a group of “talented scientists and computer programmers” have been passed over for promotions in favor of “less impressive white co-workers.”7 These African Americans “devise a means of metering the greater society's use of cultural expressions of subordinated peoples of color” and then charge a royalty fee for companies that borrow cultural styles without licensing or attributing them.8 These programmers and scientists then distribute these royalties to advocacy groups, cultural centers, and not-for-profit agencies. Pretty quickly, corporations notice the loss of revenue because many of their profits derive from the commodification African American styles. The group produces a documentary to defend their actions and demand legal change:
“This nation has long urged people of color to lift themselves by their own bootstraps,” one of the group reminded the audience. “Such admonitions were repeated even when the nation knew, or should have known, that the boots of many of those people were nailed to the floor by poverty, by lack of education, by racial hatred. We have simply done as society urged, and we have done it on terms that, based on history, society should recognize—the involuntary taking of property. As victims of such takings throughout this country's history, we find it amusing that the nation now calls us thieves and condemns us.”9
The early 1990s copyright cases about the legality of hip-hop sampling constitute the unspoken context of Bell's thought experiment for returning ownership over African American cultural products to the African American community. Gospel Choirs insists that established property law doctrines, especially copyright and trademark, continue to benefit the white majority. Bell's interest convergence thesis, developed throughout his writings, argues that the Civil Rights Movement succeeded in making changes when the interests of blacks and whites converged. In practice, this has meant that those policies that benefited whites tended to become law, but that those that would have helped African Americans and other minorities exclusively languished.10
“Racial Royalties” anticipates recent concerns about the dilution of copyright's approach to fair use. It also implicitly questions whether law's normative assumption of doctrinal color-blindness has ever existed, especially within copyright law. In particular, “Racial Royalties” wonders about what exactly has constituted “fair” about “fair use” for African American cultural workers. As a metaphor to describe the relationship between initial creators and later artists, copyright law has generally treated African American musicians poorly. Bell's “Chronicle of the Constitutional Contradiction” depicts the difficulty African American critics and artists face in redressing long-standing racism and racialization. In Bell's fictive account of the Constitutional Convention, a founder asks Crenshaw, “How dare you insert yourself in these deliberations?”11 In effect, the delegate argues that Bell's reuse of the Constitutional Convention is unfair because it alters his understanding of the event's purpose and meaning. Although it is not the direct subject of that chronicle, Bell inaugurates a critique of “fair use” by sampling speeches, characters, and songs in his work. In his rendering, fair use constitutes both an aesthetic principle, in which tradition is rewoven, and a doctrinal problem involving competing racial and cultural subjectivities.
This chapter examines Colson Whitehead's John Henry Days and the paintings of Michael Ray Charles to evaluate how hip-hop aesthetes deconstruct “fair-use” appropriations of racialized imaginative properties. Whitehead's and Charles's work questions how property law distributes ownership rights over copyrighted or trademarked material and seeks to reveal how fair use itself constitutes a racialized doctrine, which courts apply in a racially conscious manner even as they claim to engage in a universal and color-blind analysis.12 This deconstruction and reconstruction of fair use criticizes the simplistic theories about textual meaning and creativity underlying intellectual property law. For hip-hop aesthetes, intellectual property law cannot easily regulate such meanings without reifying a text's racialized meaning, thus creating a false-origins myth to legitimate a particular distribution of property rights. Contemporary African American cultural workers demand, ironically, stronger intellectual property rights to protect African American culture even as they question copyright's historic complicity with racism, racialization, and racial hierarchy.
Copyright law regulates who can reproduce, distribute, or authorize a copy or a derivative text.13 However, because intellectual property law provides only a limited monopoly—not the exclusive ownership of chattel or real property—common law and federal legislation permit fair-use copying under certain conditions. The U.S. Code offers a four-factor test to determine fair use that examines:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.14
There is not a single rule for determining whether a particular use is fair. Rather, courts must balance these various factors. Reviewing cases decided by appellate courts between 1994 and 2002, David Nimmer argues that “courts tend first to make a judgment that the ultimate disposition is fair use or unfair use, and then align the four factors to fit that result as best they can.”15 He also concludes that positive findings about factors 1 and 3 slightly increased the likelihood of a fair-use determination, but that a party did not need to prevail on a majority of factors to win their claim.16 Because Nimmer's analysis includes cases whose controversies extend beyond the scope of this study, his results do not speak directly to either the racialization of intellectual properties or legal discourse's attitude toward hip-hop aesthetics. They do, however, make clear the ambiguous nature of fair-use doctrine and its potential complicity in further empowering those with greater cultural and economic capital. Nimmer's study does not capture how the ambiguity of fair-use doctrine shapes the decisions of artists, agents, publishing companies, gallery owners, and music companies. It is quite likely that copyright law's ambiguity chills some protected artistic activity because people fear litigation. This is especially true for many African American artists, writers, and musicians who historically and still overwhelmingly lack sufficient cultural and economic capital to bargain effectively with either distribution companies or copyright owners.
Many legal commentators have suggested revisions to fair use to better balance the rights of creators and the public and to further democratic dialogue about social, political, economic, and cultural issues. For example, Julie Cohen has argued that the concept of the user has been underdeveloped within copyright law, overemphasizing the owner as the primary focus of legislation and doctrine. In an attempt to remedy this deficit, Cohen has theorized about the “situated user” (as opposed to the economic, romantic, or postmodern user) who “appropriates cultural goods found within her immediate environment for four primary purposes: consumption, communication, self-development, and creative play.”17 In her provocative analysis, the situated user provides a counterweight against copyright's focus on the owner. Cohen recognizes that the public incorporates cultural texts into their own lives, shaping their identities and their worldviews.18 She argues that this should be permitted because it “fosters collective progress.”19
Similarly, Laura Bradford suggests that courts apply insights from cognitive research to copyright jurisprudence. Attempting to create a brighter line rule regarding secondary uses, instead of what fair-use doctrine currently offers, and one that better protects users’ rights, Bradford develops a legal doctrine based on psychology's insight that “our general attitudes toward iconic works, which are most often the subject of disputes, are resistant to change.”20 Rather than the current four-factor test, Bradford suggests that courts should evaluate secondary uses based upon (1) attitude resistance, (2) source effects, (3) frequency effects, and (4) processing hierarchy.21 Within this framework, the likelihood that a copy would change a user's attitude based on the secondary source's credibility, the frequency with which the user would encounter the secondary copy, and the amount of time it takes to process the copied item would all affect the outcome of the fair-use inquiry. The quicker a user could process the copy, the more an infringing use would be suggested. Bradford's approach attempts to evaluate how the viewer's perception of the original text is changed by the copying.22
In their attempts to find a better balance between owners and users within fair-use doctrine, Cohen and Bradford create legal doctrine based upon a more robust conception of the user. Their frameworks would constitute significant improvements over current legal analysis because they portray individuals not as passive receptacles but as active agents shaping their world. Despite their proposals’ strengths, they still tend to conceive of the user as an ahistorical agent, who exists independently of the copyrighted and trademarked texts, images, and sounds that populate cultural life. Cohen and Bradford suggest that individual users can deploy intangible properties however they wish. Contra this assumption, this book attempts to demonstrate how some users layer samples in literary, audio, and visual texts in rhythmic patterns and breaks, based on their understanding of hip-hop aesthetics, an extant cultural practice. While individuals certainly make distinct choices to improvise from and revise the underlying aesthetic paradigm, cultural boundaries appear to play a greater role than either Cohen or Bradford suggests. Although both recognize the increasing importance that imaginative properties play in allowing people to develop self-identities, they neglect how such texts, images, and sounds colonize people's bodies, regardless of people's attempts at self-definition. Much contemporary African American cultural production conceives of American culture not as an imaginative commons or public domain where individuals can fashion an identity for themselves without outside interference, but as a prison where freedom can be found only by resisting social conventions. While Cohen and Bradford appear to liberate and legalize certain kinds of copying, Regina Austin argues that hip-hop finds freedom precisely because it “flaunt[s] the laws of private property.”23 Austin is not arguing that all hip-hop devotees constitute criminals, but that the aesthetic demands of hip-hop rely for their very meaning on breaking certain stylistic and/or legal boundaries. Hip-hop aesthetics—especially as explored by Colson Whitehead and Michael Ray Charles—assumes a more ambivalent user than the one posited by Cohen and Bradford. Whitehead and Charles examine how extant copyrighted and trademarked properties shape raced individuals and seek to reconstruct the unfair uses that have furthered the racialization of the imaginative realm. In their critical reworking, fair use may constitute a problematic metaphor because it assumes that identity and subjectivity exist prior to property relations.
John Henry Days
Colson Whitehead's John Henry Days begins with a prologue that arranges a series of samples from scholarly works that explore the origins of the folk song “John Henry.” The song details a steel-driving contest between an African American worker and a newly invented machine. John Henry wins the contest but then dies, suggesting that a machine-driven modernity is destroying what is precious about humanity. Whitehead's novel then describes, in hilarious fashion, the efforts of J. Sutter, the novel's protagonist and a modern-day John Henry, a son of Striver's Row in Harlem, to secure receipts to pad his reimbursements from publishing and advertising outlets. The novel proceeds to narrate J. Sutter's visit to Talcott, West Virginia, as part of a public relations junket to write a story for an Internet site about the town's John Henry festival, which coincides with the U.S. Post Office's release of a John Henry stamp. Over the course of the book, Whitehead introduces his readers to various fragments in the John Henry myth's journey, from Henry's thoughts before his famous battle with the machine, to the composer who copyrighted his version of the song, to Paul Robeson's failed play about the hero. He also explores the world of publicists, stamp collectors, and freelance writers. J. Sutter also encounters and begins a romantic relationship with Pamela Street, the ambivalent heir to her father's collection of John Henry memorabilia. Street, a New Yorker like J. Sutter, is considering selling her inheritance to the town so that she can unload this unwanted legacy.
In addition to its other intersecting plotlines, the novel focuses on J. Sutter's thought process as he endeavors to break the record for nonstop junketeering, a contemporary analogue to John Henry's competition with a machine. Sutter must negotiate the demands of the information age, the Internet, and intellectual property law, in which man continues to battle for his humanity against the increasing commodification of information and culture. Unlike John Henry, however, Sutter decides to opt out of his own battle with intellectual death, or what the novel describes as being “devoured by pop,” after journeying with Pamela Street to the supposed location of John Henry's original battle with the machine. They also visit Henry's likely grave atop a local mountain where the railroad company buried the bodies of African American workers who died during the construction of the Big Bend Tunnel, the site of the mythical battle between John Henry and the machine. Street buries the ashes of her father there and decides to sell the town her father's collection. Sutter and Street then disappear into an indescribable future, as they have apparently shed history's weight. The novel ends when Sutter and Street leave the festival before it reaches its ceremonial height. Through a series of hints, Whitehead suggests that the planned apogee in this celebration of John Henry goes awry when Alphonse Miggs, a collector specializing in railroad stamps, decides to use this occasion to shoot himself and an unspecified number of those attending the gathering. The novel thus does not provide a clear resolution to its main conflicts but implies that the cultural logic underlying the John Henry myth must be transcended so that the main characters can find real freedom and escape the ubiquitous and pernicious influence of popular culture.
Although the novel provides a kaleidoscopic view of American history and culture, Whitehead devotes considerable narrative attention to the intellectual property issues that the information age has provoked. Like Smith's Twilight—Los Angeles, 1992, Morrison's Beloved, and Piper's Vanilla Nightmares series, John Henry Days displays the signs of hip-hop aesthetics: layered samples, rhythmic flows and asymmetries, and an ironic narrative mode. Beyond claiming ownership over imaginative properties, including John Henry, Whitehead reflects upon how such texts get transformed as they move through American culture. Regardless of the original intent or meaning behind his story, African Americans and cultural outsiders have used John Henry as a cultural resource to explore what it means to be human—for some what it means to be a raced being—in both the industrial and the information ages. In this hip-hop and postmodern version, John Henry the steel-driving man constitutes a familiar rhythm or narrative that has become cliché or stale. Writers and artists must deconstruct and reconstruct this tale to carve out narrative space to capture the challenges and choices of contemporary life.24 By laying down sampled versions of John Henry as the basis of his hip-hop revisionist version, Whitehead implicitly criticizes copyright's fair-use doctrine because it fails to account for how texts, especially racialized ones, produce cultural memory, influence future creative activity, and shape individual identities. Whitehead also reminds legislators and judges that limited copyright protections proved more than sufficient motivation or incentive for the hundreds of musicians, storytellers, playwrights, and visual artists who fashioned their own John Henrys, even if those rules limited the ownership rights of these cultural workers in their creations. His critique of copyright suggests that a narrowly constructed fair-use doctrine would impede, if not prohibit, certain cultural forms and the critical conversation around those forms.25
The novel documents how the circulation of the John Henry myth through several genres enriched American culture, writ large, even as it failed to alleviate the relative economic poverty of African Americans. Whitehead never states that fair use and the distribution of ownership interests within copyright or property law constitutes a primary theme of John Henry Days, but the circulation of imaginative properties and the economic effects of that movement always remain central to the novel's narrative trajectory. Since Reconstruction, or the putative 1872 contest between John Henry and the machine, intellectual property laws have consistently favored those white individuals who wrote down, composed, drew, or marketed the story over those African American individuals who lived or experienced it.26 Whitehead sprinkles evidence of this redistribution of ownership rights over the American imaginary domain throughout the novel. In what appeared to some initial reviewers as extraneous material, Whitehead attempts to illustrate the many ways that African American creativity got transformed into other people's intellectual property, owned by fictional individuals such as Jack Rose, who copyrighted his version of the song after overhearing a pedestrian humming a version, or Andrew Goodman, who offered to record a traveling bluesman's version of the song.27 A nameless participant in the writing of the John Henry folk song opines: “Like a dollar bill it changes hands. Others will hear it and add a verse, goose the rhythm, slow it down to fit their mood….This is his own John Henry.”28 In a humorous rant by Dave Brown, one of the senior statesmen among the junketeers, Whitehead reminds his readers how the Rolling Stones began their careers by borrowing riffs and lyrics from Mississippi bluesmen.29
In addition to these individual actions whereby specific white creators appropriate and profit from African American culture, Whitehead emphasizes time and again how institutions and corporations borrow select images of African American life whenever it's convenient. One of the junketeers, Tiny, remembers that his elementary school read kindergartners a version of John Henry after the local school board determined that Little Black Sambo contained negative imagery about African Americans.30 The U.S. Post Office's use of folk heroes most obviously exemplifies this attempt to circulate a popular image of African American life,31 even if this event attracted relatively few African Americans.32 Pamela Street and J. Sutter even encounter and reflect upon a John Henry statue designed and built by Talcott's Ruritan club after they persuaded Johnny Cash to donate money for their statue because he mistakenly identified Beckley, West Virginia, as John Henry's home.33 Pamela muses after viewing the statue: “He is open to interpretation. Talking out of both sides of his mouth. You hear what you want to hear.” Whitehead then adds that Pamela “is confusing the statue before her with the man, and the man with her conception of the man.”34 To further the irony, J. recognizes this particular John Henry statue because Jim Beam licensed from Ruritan the use of this image for one of its whiskey bottles.35 Whitehead deploys these textual moments to demonstrate how cultural properties circulate far beyond copyright's assumptions about the flow of cultural materials.
John Henry Days also serves as an intellectual property ghost story on at least two levels. First, Josie, one of the white owners of the Talcott Motor Lodge, where J. Sutter, Pamela Street, and the junketeers stay, knows that a ghost haunts the motel and the region. Through her, Whitehead relates: “The first ghost any child of the region hears of is John Henry. Each time a train leaves the Talcott station and rushes into Big Bend Tunnel, the engineer blows the whistle for old John Henry, poor John Henry.”36 Josie, however, is convinced that there is a ghost, apparently John Henry's, living in the hotel and disturbing guests. She is concerned about the weekend of the John Henry festival because they have booked all of the rooms, meaning that the ghost will likely inhabit a guest's room. After searching for some clues, she suspects that the ghost will haunt room 27, J. Sutter's room.37 Of course, the ghost shares a room with J. Sutter, as he constitutes a contemporary analog for John Henry. Second, the ghost of John Henry haunts Pamela Street as an ambivalent inheritance. For Pamela, the novel details her attempt to heal the wounds associated with her father's obsession with John Henry memorabilia, a bizarre contest of his own construction in which he pitted his own commitment to the folk hero against the world's neglect and misunderstanding.38 Her father filled Pamela's childhood home with the ghostly presence of John Henry. The memorabilia crowded out her needs and snuffed out Pamela's and her mother's dreams for the future because of her father's obsession with John Henry and the past. In both instances, the ghost of John Henry constitutes an unwanted paradigm for perseverance in a racialized world as Pamela and J. Sutter seek freedom from historical limitations endured by their parents and grandparents. By selecting John Henry and the many iterations of his story as a primary metaphor for the historical legacy inherited by African Americans, Whitehead fuses the common theme of historical racism with more contemporary concerns about intellectual property law.
Whitehead's exploration of John Henry's legacy offers a surprisingly rich cultural matrix from which to explore the efficiency and ethics of fair-use doctrine. As discussed above, intellectual property law relies on four factors (purpose, nature, amount, and market effect) to determine whether a particular instance of copying constitutes infringement. Enacted in 1976, this legislation was passed by Congress to codify fair-use doctrine because a conflicting body of case law had emerged. The legislative history suggests the many concerns, from educational use to parody, that shaped the specific language adopted. The linked concepts of culture, cultural matrix, and/or cultural formations, however, are conspicuously absent, because in 1976 few American scholars had yet adopted cultural studies as a primary method for understanding texts. As many others have noted, copyright law generally reflects a romantic conception of authorship in which a genius creates in isolation with full consciousness and knowledge about her creation. Fair-use doctrine generally shares these assumptions, even if later scholarly investigations of cultural and imaginative texts by the Birmingham school and their American progeny question this founding truth of intellectual property law. Given the many powerful criticisms of the romantic model of authorship, it would be redundant to simply add John Henry Days to the already long list of works that rebut this theory due to liberal use and refashioning of extant cultural objects and texts.
Rather, Whitehead's engagement with cultural icons reflects a more specific criticism of fair use: how copyright confers ownership rights in racialized and often stereotyped images that dominate popular memory and shape individual identities. Examined through the lens of racialization and the long history of racial caricatures within American culture, the appropriation of images, whether moving the characters from Harriet Beecher Stowe's Uncle Tom's Cabin into minstrel shows or Public Enemy's satirical rendering of Driving Miss Daisy in “Burn, Hollywood, Burn,” illustrates the false binaries that fair-use doctrine arranges because it ignores the racialized nature of imaginative properties. The 1976 congressional codification of fair-use doctrine addressed neither the systematic redistribution of ownership rights over African American cultural forms nor the complicity of culture industries’ perpetuation of racial hierarchy. Rather, it sought to provide clearer guidance for institutional and corporate actors as commerce in intellectual properties burgeoned. In this context, cultural influences or effects had little relevance to Congress's deliberations, even if the unacknowledged circulation of racialized texts frequently creates the very value intellectual property owners wish to capture. Racialized images, characters, and sounds possess meaning and thus market value precisely because they trade on the preexisting recognition of stereotypes and caricatures.
Fair use's first factor divides potential uses into two categories: commercial purposes or nonprofit educational purposes.39 While courts tend not to apply this as a strict binary and recognize that these categories overlap, the concepts of culture, cultural memory, and cultural formation are conspicuously absent. Although scholars, intellectuals, and activists have vigorously debated its meaning recently, culture cannot be reduced to merely commerce, education, or some synthesis of the two. Rather, culture involves shared ideologies, habits, rituals, objects, practices, beliefs, values, and/or communal attitudes toward texts and textuality. Most cultural critics conceive of these items as public-domain property, in effect, because they form the basis of public communication, understanding, and social institutions. Susan Scafidi, Michael Brown, and others have attempted to develop concepts of communal ownership for cultural properties in order to enrich indigenous and minority cultures whose knowledge, artistic products, and rituals have become prized commodifies by outsiders. This approach, however, privileges traditional practices and knowledge over ongoing developments and the vibrant expressions of living cultural groups. In October 2005, the United Nations Educational, Scientific, and Cultural Organization (UNESCO) adopted a convention in which it ratified the importance of fostering a diversity of cultural expression and urged states to protect, maintain, and promote diverse cultural expressions.40 The UNESCO convention illustrates the limitations of the commerce-education binary offered by the first factor in fair-use analysis. It suggests that a third purpose should guide fair-use inquiries: the promotion of diverse cultural expressions. Whitehead's deployment of John Henry illustrates the importance of constructing a fair-use doctrine that validates and promotes a rich cultural imaginary in which potentially copyrighted texts, images, and sounds can be recrafted to speak to contemporary dilemmas.
Even though John Henry Days clearly possesses a commercial purpose, it explores and creates an imaginative universe that reveals the shifting tensions facing African Americans specifically and all Americans more generally. The segregation and intentional racism of the Industrial Revolution have morphed into the putatively color-blind but nonetheless racialized information age. In its own way, John Henry Days educates its audience about changing conditions of economic production and organization. However, it can be best understood as part of an ongoing cultural dialogue both within the African American community and across racial lines. Although Whitehead could have written about these ideas without reference to John Henry, the transformation of this mythic tale and moral fable for contemporary readers provides a particularly compelling and revealing articulation of current economic, cultural, social, political, and psychological challenges. As the ambiguous ending suggests, some images must become museum relics so that specific individuals can be liberated from the cruel hand of history. Any “fair-use” analysis must engage with the commercialization of cultural products by outsiders, the racialized effects of protected images, and the continuing need to refashion symbols and metaphors based on contemporary events and challenges. Because the fair-use doctrine does not specifically or consciously explore the effects of protected texts, images, and sounds, it neglects the very conditions and structures that give cultural objects meaning and importance.
The second factor of fair-use analysis explores the nature of the copyrighted work.41 Arguably, this allows courts to explore the cultural relations a specific text invokes. For example, the U.S. Supreme Court found that 2 Live Crew's “Pretty Woman” constituted a parody of Roy Orbison's song and thereby needed to copy substantial portions of it to perform its satiric function. The predictable result of this decision has been that parodies receive considerable latitude in fair-use decisions when compared to other genres or forms. The court's decision in this case, however, distinguished parody from other satiric forms, arguing that satire alone does not provide license to copy material because the articulated criticism does not specifically address or is limited to the appropriated text.42 Analyzing this decision, David Sanjek concludes that Judge David Souter's opinion implicitly permits artists to refashion texts for criticism and transformative uses.43 In this decision, Judge Souter makes it quite clear that “this is not, of course, to say that anyone who calls himself a parodist can skim the cream and get away scot free.”44 For Souter, what permits 2 Live Crew's appropriation of Roy Orbison's song is not that it transforms the song from romance to irony but that it effects a parody, a distinct form within the ironic mode.
Courts typically rely on the second factor of the fair-use test to determine whether a work is fiction or nonfiction and quickly move onto the third factor. In determining a text's nature, courts tend to rely on common-sense approaches even if there exists considerable scholarly debate about how best to classify a given text. For example, in SunTrust Bank v. Houghton Mifflin, the court determined that Gone With the Wind was fiction and that it required a high level of protection.45 Hip-hop aesthetics, however, suggests that a text's meaning is invariably related to its context and its narrative mode. The SunTrust court acknowledged that Alice Randall's The Wind Done Gone “de-mystified” and “stripped the romanticism” from Margaret Mitchell's Gone With the Wind.46 Although both parties offered considerable expert testimony about the nature of Randall's work and whether it was parody, signifyin’, or just plain copying, neither party needed to present testimony about the nature of Mitchell's novel. Because the two differed in narrative mode (romance vs. irony/satire), the texts operate in necessarily conflicting ways. The court's final decision, however, tended to omit the considerable academic debate about the relationship between the two works in favor of a common-sense perspective. The court cautioned that “literary relevance [or meaning] is a highly subjective analysis ill-suited for judicial inquiry.”47 The court reluctantly concluded that when copyright-infringement claims and defenses invoke aesthetic interpretations, legal discourse cannot easily render clear and efficient guidance.
In John Henry Days, Whitehead contributes to ongoing discussions about fair use by examining the relationships among texts, their predecessors, and the cultural relations that give those texts meaning. By charting the many renderings of John Henry, Whitehead suggests that cultural context defines the nature of a copyrighted text. Because particular cultural sensibilities are crystallized in songs, images, and stories, their very existence hinges upon their relationship to an interpretative community. Whitehead explores how the relationship between text and context determines a work's meaning. For example, Pamela Street's father's museum, as a private collection, fails to attract visitors and eventually estranges him from his family because the objects and songs lack a clear narrative context other than his own obsession.48 Mr. Street's museum that lacks visitors illustrates the dangers of severing a text from its cultural moorings. Street's collection of John Henry memorabilia has become disconnected from the cultural formations that gave the song its initial meaning. Street desperately wanted to absorb the romantic/tragic myth associated with early versions of the song. However, Whitehead makes all too clear that these narrative modes no longer speak to contemporary sensibilities. Instead, he frequently invokes irony to depict contemporary culture.49 For this reason, John Henry achieves considerable popularity as postmodern pastiche, a postage stamp, and the inspiration for a town's marketing plan.
Contemporary ironic appropriations of John Henry differ qualitatively from earlier borrowings because they alter our understanding and attitude toward the original folk tale and its cultural meaning. In these iterations, corporate actors have refashioned or reconstructed John Henry into a new object, related to but distinct from earlier versions. By contrast, White-head's fictional Jake Rose, the Tin Pan Alley–style composer, simply wrote down the melody and lyrics he overheard sung by a nameless African American on the street.50 Earlier in the novel, Whitehead describes the creative process of a nameless singer/songwriter who is developing his own John Henry. The musician reflects upon his efforts in crafting his version of the song: “He's practically stealing the song today; it's not his but he's got his fingers on it and that's half the battle.”51 A page later, this nameless composer acknowledges that his is just one version in which each artist struggles to fashion a John Henry that represents his or her experience.52 Jake Rose does not seek to bare his soul. He does not care why a song is popular. Rather, he just wants to get a start in the music business by whatever means necessary.53 For legal discourse, the difference between these two composers may be difficult, if not impossible, to distinguish. However, in the realm of creation and cultural expression, such distinctions allow one artist to be viewed as real, while another will be viewed as a fraud. Even if law cannot detect these fine differences, many audiences can. For African American artists, the problem has been that white singers and songwriters, who appropriate their styles, have had greater access to the recording and music-publishing industry and thus could pass themselves off as originals even when they present pale imitations of African American cultural forms. In this context, the second factor for fair use needs to get beyond the sheet music, image, or written word and account for the creative and cultural processes that generate particular copyrighted texts. Failure to do so produces an arbitrary but nonetheless raced distribution of intellectual property rights in which those who have the greatest access to copyright and contract lawyers, not the greatest amount of creativity, will ultimately come to own a greater share of the imaginary domain. This situation furthers romantic conceptions of authorship because these copyright owners appear to have created texts, songs, and images out of thin air, as their intellectual properties may have little connection to their own cultural practices. The existence of a fairly weak approach to a text's nature, which emphasizes genre over cultural connections, only furthers the redistribution of intellectual property ownership rights from marginalized communities to dominant corporate interests.54
The third fair-use factor examines the “amount and substantiality of the portion used in relation to the copyrighted work as a whole.”55 The amount and substantiality test explores how much the second text borrows from the first and how central the borrowed element is to the meaning of that first text.56 This factor considers the borrowed portion only in relation to the first text. Courts will examine what percentage of the original or first text is used in the later text and whether the appropriated material constitutes the central message or artistic sensibility of that first text. In applying this factor, the only significant analytic distinctions involve the original meaning or operation of the sampled portion, not how a second text reworks it or reshapes its meaning. Legal discourse thus implicitly assumes that the borrowed material will function and signify in a similar or identical fashion in later texts as it did in its original setting.
Olufunmilayo Arewa argues that because courts tend to emphasize melody, as opposed to rhythm and percussion, in their fair-use analysis of music, they neglect how context determines the meaning or significance of notes and pitches. For Arewa, hip-hop and other music created in the African Diaspora emphasize orality and linguistic play as central features, rather than textuality or composition.57 Courts, however, simply listen to the music and apparently determine if there is any kind of literal or fragmented similarity between the putative original and the alleged copy.58 Although Arewa points out that “orality and linguistic play are…not sufficiently considered in analysis of hip hop,” her system to license samples, however, returns to a test of recognizability, which would apparently require legal actors and courts to return to the very forms of analysis she criticizes.59 Despite this limitation, Arewa's approach goes beyond current legal doctrine because it would require courts to attend not only to the appropriated text but to how a secondary user deploys the borrowed material. Arewa encourages courts to go beyond simplistic applications of the third fair-use factor and examines how the meaning of words, images, and sounds changes as their context does. Such an approach offers copyright law, which has become increasingly significant as an arbiter or regulator of multicultural exchange, a richer model of culture.
In its incessant critique of how marketing and public relations have reshaped the contours of cultural life, Whitehead's John Henry Days implicitly provides a corrective to fair-use doctrine's romantic approach to textuality. Arewa's analysis of fair use's failings interrogates copyright discourse's grounding assumption that creators write and produce their work as completed wholes, free from historical and contemporary popular culture influences. For the John Henry myth, partial and unlicensed borrowings or appropriations have allowed the story to develop and suit its message to a wide range of audiences. Although this is not explicitly stated, Arewa appears to rely on post-structuralism and performance theory to criticize legal discourse's tendency toward ahistorical understandings of particular texts. Her analysis allows judges and scholars to transcend narrow spatial/temporal boundaries and determine the relationships among the creator's likely initial intent, the text's probable initial social meaning, and later appropriations of that text. Whitehead's novel attempts a genealogical reconstruction of John Henry's myth. Weaving together diverse strands of the tale, Whitehead demonstrates that cultural texts can quickly take on a life of their own, regardless of their creators’ intent. John Henry quickly became part of a de facto public domain, and musicians, playwrights, marketers, and even the U.S. Post Office drew on John Henry's iconic status to articulate their own hopes and dreams or to appropriate some of his signifying power for their own purposes.
Although both Pamela Street, through her father's collection, and J. Sutter, due to his attempt to break the nonstop junketeering record, possess forms of ownership over the John Henry myth, the novel culminates abruptly with the pair apparently leaving the festivities early. In what would be unthinkable, or at least highly unlikely, within legal discourse, J. Sutter and Pamela Street simply relinquish control and ownership over the John Henry myth once they realize its pernicious effect on their lives. Even as it excavates the origins of John Henry, the novel also reveals Sutter's and Street's dawning consciousness of how the John Henry myth has ensnared them and shaped their life choices. Much like his earlier The Intuitionist, with its ironic deconstruction of uplift metaphors within African American culture, Whitehead's John Henry Days reflects upon the limits of received myths and narratives for the ultimate liberation of African Americans. The novel deploys sampled elements from and about John Henry in order to produce a rupture with the past. Echoing Paul Gilroy's examination of black vernacular uses of futurology, John Henry Days encourages readers to liberate their imaginations and free themselves from stories that leave African Americans trapped in a racialized and white-supremacist past.60 John Henry thus appears to constitute a narrative or myth whose existence has outlasted its political utility. What remains is merely a text ripe for sampled appropriations and other derivative uses. The novel's ambivalent ending suggests that, despite the importance of remembering history, especially the horror of racial hierarchy, African Americans need to generate new myths. As the novel's numerous hints suggest, the continued celebration of the John Henry myth will produce sometimes violent effects. Whitehead's novel thus implies that even though derivative uses of John Henry can proliferate and constitute new texts in and of themselves, which his own novel clearly exemplifies, overreliance on historical narratives can result in an unconscious reproduction of racial stereotypes.
The final factor that influences fair-use determinations considers the “effect of the use upon the potential market for or value of the copyrighted work.”61 This element of fair-use analysis connects recent copyright discourse with its founding concern about piracy. The fourth factor asks courts to consider whether the derivative use will serve as a market substitute for the appropriated text. In other words, will the borrowing of sounds, images, or words result in the earlier writer, artist, or composer losing sales or profits? The 2001 Napster litigation, for example, focused on whether the music-sharing service caused fewer college students to purchase music and impeded the recording industry's efforts to create new markets for music.62 The court concluded that although time- or space-shifting can operate within the parameters of fair use, Napster's customers exceeded those limits.63 This decision, along with others, makes clear that this fourth factor contemplates whether the copying serves as mere duplication and thus negatively impacts the sales of the earlier version. Conversely, recent litigation involving Google's search engine examined whether its use of cached images constituted copyright infringement. The U.S. District Court for Nevada held that such copying leaned toward a finding of fair use because it did not impact the potential market for the claimant's works.64 In Ty v. Publications International Limited, the Seventh Circuit differentiated between complementary and substitutional uses. The Ty court held that only substitutional uses violate copyright law.65 In these fair-use decisions, courts establish fairly clear rules to determine permissible kinds of appropriation and differentiate them from prohibited forms of copying.
Copyright law, however, permits criticism of earlier works even if it persuades consumers not to purchase the initial text. Critical appropriations differ from pirating because the resulting text incorporates previous material and shapes it into something that exceeds the original. In SunTrust, the court held that while its commentary might affect the sales of Gone With the Wind, The Wind Done Gone constituted a fair-use appropriation of Margaret Mitchell's book. The court noted in a footnote that the publication of The Wind Done Gone did not curtail or limit the sales of Gone With the Wind.66 Judge Marcus, in his concurring opinion, noted that the two books “aim at different readerships; to the extent that there is any overlap between these respective markets, further factfinding [sic] may well reveal that these two books will act as complements rather than substitutes.”67 The court clarified the meaning and scope of this fourth factor to limit this category of copying that adds little to the original but only harms the ability of the copyright holder to realize income from that intellectual property. It appears as if Margaret Mitchell's heirs sought to use copyright law as a shield against any criticism of Gone With the Wind, which might affect sales. The SunTrust court, however, held that copyright infringement occurs only when that diminution of value occurs through blatant piracy, not critical rewritings.
Whitehead's novel charts the various rewritings, reworkings, and reuses of the John Henry name and myth. Within John Henry Days, the activities of and references to the eponymous hero generate considerable revenue for the various songwriters, performers, marketers, and advertisers. The endless repetition of the John Henry sign does not appear to diminish its value. Rather, the John Henry myth appears to be an inexhaustible cultural resource that retains its value, no matter how many people tap or mine its power, even if these various uses transform its initial meaning. Over the novel's course, Whitehead suggests that any attempt to trace the mysterious origins of John Henry will be partial and incomplete. Whether it focuses on the future or on the past, the book deconstructs the myth that John Henry is the product of a particular creator or that any one person can control its meaning. The novel, for example, identifies two failed scholarly (one black and one white) attempts to locate the myth's origin. The novel also exposes how the song appeared to take on a cultural life of its own, jumping from composer to composer, writer to writer, advertiser to marketer, and picking up steam all along the way. Echoing Rosemary Coombe's argument in The Cultural Life of Intellectual Properties, John Henry appears to possess a cultural life of its own, irrespective of its creators. Through acts of appropriation and recontextualization, John Henry becomes a textual space where democracy gets articulated and rearticulated.
Perhaps ironically, John Henry's transformation into American myth and the basis for democratic dialogue requires Pamela Street and J. Sutter to abandon this cultural inheritance. The nation's adoption of an African American folk story, in effect, “dispossesses” African Americans of the story and severs the link between them and the story. The commodification of John Henry elides the very historical subjectivity the story initially articulated and thus effects a revision of American racial history. Both the town and the U.S. Post Office participate in this racial myth-making in their attempt to demonstrate their multicultural values. Although Street and Sutter struggle with abandoning the myth and the many artifacts it has generated, the novel's ending suggests that they ultimately escape the John Henry celebration's concluding violence precisely because they have renounced the myth before it has been completely commodified. Within the novel's twisted logic, John Henry's value grows as songwriters, advertisers, and marketers use the myth for their own ends. In terms of the fourth fair-use factor, the deployments of John Henry do not hurt its economic value even as they transform its cultural value.
John Henry Days invites a range of questions about intellectual property, fair use, and post–Civil Rights era African American culture. It examines whether multiculturalism's attempt to broaden the boundaries of American culture has effected a dispossession of African American cultural memory. Whitehead skillfully notes the irony that copyright law, which has limited or impeded hip-hop's development of sampling, has proven quite receptive to corporate attempts to appropriate African American culture, such as Talcott's and the U.S. Post Office's efforts.68 He illustrates that the very diversification or “multiculturalization” of post–Civil Rights America has required that African Americans give up ownership rights over their history and folk culture so that it, too, may become incorporated into commodify culture. Ironically, the demand to transform African American folk or popular culture into a broader or multicultural vision of American culture, writ large, coincides with what Phillip Richards has termed the rise of the “signifiers,” a group of literary and cultural critics who “seek to convert this rhetorical method…into a literary institution embodying black culture.”69 Richards persuasively argues that their work posits a false and troubling romanticization of vernacular culture because it omits or elides the very real ways that African Americans have always drawn on European forms to articulate cultural, social, legal, and political criticisms. The turn toward vernacular forms within African American studies at this historical moment romanticizes folk culture, including hip-hop, and frames it as a proxy for racial authenticity precisely when intellectual property law enables and protects corporate uses of such materials. Sutter and Street's exit from the John Henry festival at the novel's conclusion suggests that once folk culture possesses significant economic value, it is no longer folk culture. Thus, the critical effort to locate signifyin’ or any other folk protégé at the center of African American culture, ironically, transforms the very rituals they seek to protect.
Whitehead affirms the importance of signifyin’ to African American culture and the need for legal discourse to recognize the latent creativity in such methods even as he suggests that the search for authenticity, which frequently underlies the critical support for signifyin’, will ultimately prove futile. Exemplifying a post-structuralist sensibility, John Henry Days ultimately questions whether any return to the romanticized past is possible or whether folk culture can ultimately ground African American cultural identity.70 The growing public interest in John Henry, which the novel explores, appears to reflect nostalgia for a past that never existed. Instead of the romantic version proposed by marketers, John Henry, as cultural inheritance, haunts individuals such as Sutter and Street. As a result, the novel offers an ambiguous, perhaps slightly negative conclusion about intellectual property law's role in distributing ownership interests in African American folk culture and history. While Whitehead is quite clear that copyright plays a disproportionate role in shaping cultural relations, the novel expresses considerable doubt about who benefits from subsequent uses of the John Henry story. The transition from folk culture to intellectual property, whether in the guise of popular music or academic theory, presents numerous challenges and dangers. It is unclear, within the novel's universe, whether continued ownership over the myth would improve the lives of African Americans. John Henry Days thus presents as many questions as it answers about copyright and fair use.
Fair Use and Racist Images from
(African American) Popular Culture
Not all ownership claims regarding folk culture involve romantic figures or myths, such as John Henry, nor do they all fall within the purview of copyright law. The circulation of putatively racist images and words has become a central concern within post–Civil Rights era African American culture. For example, a diverse group of African Americans, from Damon Wayans to Randall Kennedy, have attempted to reclaim ownership over the term nigger or nigga, despite its tremendously negative meaning within American culture in general.71 The use of the word and its variants are common within hip hop-lyrics. Depending on the context, the speaker, and the audience, the N-word can denote either an insult of an African American or a recognition of friendship and group affiliation.72 Comedians such as Chris Rock and Dave Chappelle use the word both critically and afirmatively in their routines. In his film Bamboozled, Spike Lee explores a middle-class African American's attempt to use the N-word and other racial stereotypes ironically. Lee, however, has criticized Quentin Tarantino, a white filmmaker whose work has frequently paid homage to blaxploitation films and their directors, for using the N-word. In his analysis of the Lee-Tarantino controversy, Randall Kennedy argues that Lee, and others like him, want to “cast a protectionist pall” over the word and so limit the ability for American culture to rehabilitate the word and thus repair one of the most damaging legacies of racism.73 While I maintain my skepticism about the efficacy or logic behind his argument, Kennedy's position is shared by numerous African American cultural workers even as others within the community criticize the use of the N-word in equally strident terms. Within the context of intellectual property law, the debate over the N-word and other inflammatory words and imagery presents a question of fair use: who can use the term and in what ways? Put otherwise, who has the right to claim ownership over or register a trademark for the N-word?74
Unlike the constitutional foundation for copyright and patent law, trademark law developed through the common law, and Congress eventually codified it in 1946. Copyright and patent originate in a “bargain” between inventors and society in which the public gives creators a limited monopoly in their inventions as an incentive to engage in creative work.75 Trademark, however, does not rely on a contract between the trademark holder and society. Rather, trademarks protect consumers by minimizing public confusion about the origin of a particular product.76 The Lanham Act defines a trademark as “any word, name, symbol, or device, or any combination thereof—used by a person…to identify and distinguish his or her goods, including a unique product, from those manufactured or sold by others.”77 According to Sheldon Halpern, courts developed methods, such as the Abercrombie factors, to determine the distinctiveness of a particular trademark or trade dress and decide whether a particular mark seemed merely descriptive or generic, and thus undeserving of protection, or arbitrary and fanciful enough to be properly considered a trademark.78 For Halpern and other scholars, trademarks and trade dress operate as a stamp of authenticity, informing consumers that the product or service is the “real thing.”
Both post–World War II trademark jurisprudence and the Black Arts Movement79 shared a concern with protecting consumers from inauthentic or counterfeit goods—no matter whether they are ordinary commodifies or ones that hold particular racial or class significance. The turn toward vernacular criticism and the signifyin’ school of cultural criticism, according to Phillip Richards, sought to identify the essential artistic differences between white and black artists so that authentic black voices could be nourished and developed. Skeptical of this project, Richards argues that establishing one's credentials as a complete or genuine African American artist or critic caused African Americans to minimize Anglo-American influences and broke down necessary dialogues between the humanities and the social sciences and between African Americans and other ethnic/racial groups, including whites.80 Both the Black Arts Movement and hip-hop culture rely extensively on the logic of trademarked identities even if not all of the goods, symbols, and icons are registered with the U.S. Patent and Trademark Office. R. A. T. Judy argues that “rap becomes an authentic African American cultural form” precisely to the extent to which it “adapts to the force of commodification.”81 For Judy, hip-hop and other cultural-nationalist forms rely on the logic of authentic human experience within a world of hypercapitalism.82 Hip-hop aesthetics, in effect, serves as an “anti-trademark,” recuperating the very authenticity lost due to the commodification of African American cultural styles. If the Black Arts Movement tended to deploy such identity trademarks romantically by associating them with an uncompromised racial identity, hip-hop deploys trademarks ironically or with ambivalence.
Perhaps the best example illustrating this faux ownership, or parody of ownership, might be the life and career of Jean-Michel Basquiat. Basquiat began his career as a graffiti artist, known for his trademark tag “SAMO,” or “same old shit,” and then transformed himself into a high-culture painter who deployed hip-hop methods to “dismantle [his] historical precedents by showing mastery over their techniques and styles and [put] them to new uses, in which the new becomes the final product layered over the past.”83 The “typical” Basquiat canvas includes multiple misspellings; copyright symbols;84 scratched-out phrases; crude or faux-primitive drawings; ambiguous allusions; and liberal borrowings of trademarked figures, especially superheroes and famous personas. The images intentionally invite comparisons with primitivism, even though Basquiat's work clearly subverts and mocks Modernist appropriations of primitivism. Following the long trajectory of African American Modernist experimentation, Basquiat relies on the interplay between text and orality to deconstruct the stereotype that African Americans rely solely on oral culture. Frequently, Basquiat's images depend on textual literacy in order to decode the putatively primitive writing. For example, in his 1982 painting Natives Carrying Some Guns, Bibles, Amorites on Safari, Basquiat twice connects the words “TUSK$” and “$KIN$” with arrows. Within the context of the painting's stated theme of exploring colonization, this repetitive blending of letters and symbols requires viewers to “read” the painting at least twice because it is unclear whether the blend of symbols and letters refers to the relationship among tusks, skins, and money or tusks, kins, and money. Analogous to hip-hop's use of misspellings or neologisms for lyrics and names, Basquiat's paintings play with the slippage between oral and textual cultures. Analyzing experimental and avant-garde African American literature of the post–World War II era, Aldon Nielsen argues that an African American tradition, in which “orality and textuality were not opposed to one another and did not exist in any simple or simplistic opposition to modernity or postmodernity,” had been well-developed by the time Basquiat began painting.85 Basquiat transformed this textual and oral wordplay by consciously merging avant-garde African American styles with putatively “working-class” or “street” styles, thereby forging a synthesis of both popular and high-culture aesthetics. This blended approach deconstructs essentialized or essentializing approaches to identity, where a person's authenticity as an African American appears directly correlated with her connection to street life.86 Oddly prescient, Basquiat predicts white America's fascination with gangsta rap and thug life.87 Basquiat's mapping of the complex relationship between mimicry and authenticity, ostensibly regulated by copyright and trademark law respectively, provides a ready reminder that authenticity remains the primary or dominant criterion for evaluating and rating African American cultural production. Consequently, trademark—the legal device that regulates authenticity—has proven an inescapable but unspoken analytic within contemporary African American cultural criticism.
Within this context, it appears that the debate over who can or cannot use the N-word in comedy, film, music, clothing, and literature increasingly presents a question of authenticity and cultural capital—the primary concern of trademark law. The discussion among Chris Rock, Spike Lee, Quentin Tarantino, Randall Kennedy, and others fundamentally involves determining the relationship between the word and its speaker. If the speaker possesses the requisite “blackness,” he or she can recast an apparently racist phrase into a more positive identity claim. Todd Anten argues that self-disparaging trademarks, such Wayan's attempt to trademark “Nigga” for his clothing line, can promote social change and that the U.S. Patent and Trademark Office ought to allow them if a member of the referenced community puts forth the trademark petition.88 This argument mimics trademark's underlying logic because the producer's identity determines the authenticity or the quality/meaning of the good. Such trademark claims would enable African Americans to commodify their racial identity and permit further consumption of racialized goods and services.
Anten's logic for supporting self-disparaging trademarked terms and the probable cause for their contemporary popularity relies on the implicit irony within the dialectical relationship between body and text/word. Recent debates about the N-word echo Rosemary Coombe's application of Foucault's conception of the author-function to trademarks:
Although trademarks are not conventionally understood to have “authors” because they require no necessary genius, originality, or creativity, the legal recognition that trademark “owners” have a proprietary interest in marketing signs increasingly relies upon a reenactment of the author-function described by Foucault. This is evident in judicial acceptance of the belief that through investment, labor, and strategic dissemination, the holder of a trademark creates a set of unique meanings in the minds of consumers.89
Coombe does not specifically or systematically apply this insight to potentially contradictory uses of such self-disparaging trademarks within African-American art and literature. Such self-disparaging terms and trademarks provide authors and artists the means by which to assert themselves as raced authors even as they aim to deconstruct and/or interrogate the very logic of race. Trademark, especially in the context of hip-hop aesthetics, allows cultural workers to transform their labor and creativity into ownership rights over the very illusion of authenticity hip-hop offers.
Distinct from copyright law, trademark has developed its own approach to fair use. Traditionally, trademark law permitted “fair use of a famous mark by another person in comparative commercial advertising or promotion to identify the competing goods or services of the owner of the famous mark.” Only in 2006 did Congress amend the Lanham Act to allow parodies of trademarked logos.90 Stephanie Greene argues that promoting free speech, within the framework of “preventing consumer confusion and protecting the goodwill of the trademark holder,” has guided the development of trademark's approach to fair use.91 Courts, however, have split upon the best method for applying fair use to trademark disputes. Greene suggests that the current statutory scheme provides fairly clear guidance for resolving disputes, especially in limiting the rights of descriptive marks (i.e., trademark names that provide a generic description of the item rather than arbitrary or fanciful names, unrelated to the item's function), while permitting “an appropriate balance between consumer confusion and competition.”92 She contends that trademark law cannot prohibit or enjoin all potential confusion, but only that customer confusion that would cause uncertainty about a particular product's origin. Her reading of trademark's approach to fair use contemplates that some comparative uses of a trade-marked name might cause consumers to decide against purchasing the other trademarked name. This, according to Greene, is analytically distinct from the problem when one commodify borrows the reputation of another, thereby diluting the value of the original trademarked name and/or free-riding on another's good name. Unlike copyright law, which has expanded the scope and duration of copyrights, Halpern and Doellinger argue that recent court decisions have limited trademark rights, especially to promote free speech.93
While copyright law has received considerable notice from hip-hop aesthetes and their critics, much less attention has been focused on fair use within trademark law. Certain cases, such as Damon Wayans's trademark application for the term “Nigga,” have received general public notice, but it has been fairly disconnected from research in contemporary African American art, literature, and music. By connecting Whitehead's John Henry Days and the artwork of Michael Ray Charles, this chapter seeks to explore how African American cultural workers have represented and criticized the ongoing circulation of raced imaginative properties. Unlike legal discourse, with its historically clear boundaries, which Moffat argues appear to be eroding with the increased demand for overlapping forms of protection for all forms of intellectual property, between trademark and copyright, African American creativity and critical analyses of imaginative properties have adopted their own discursive framework for analyzing and regulating imaginative properties.94 John Henry Days presents the problem of how the transformation of folk culture into intellectual property creates a disenabling cultural inheritance for post–Civil Rights era African Americans, such as J. Sutter and Pamela Street. Whitehead apparently concludes that the only way to free oneself from the history of racism is to alienate or abandon stultifying cultural traditions or narratives. The artwork of Michael Ray Charles has adopted a much more controversial style by reworking established trademarks (even though he uses copyright symbols liberally in his work, like and/or in homage to Jean-Michel Basquiat). Ignoring the subtle legal distinctions between copyright and trademark, Charles promotes his own version of “fair use” of racist caricatures in order to liberate himself from their power. No less than Whitehead, Charles illustrates how intellectual property law, especially trademark law, has created raced property interests that operate through racist stereotypes and that have effected the transfer of ownership rights of the American cultural imagination to white people and the corporations they own.95
Drawing on advertisements from the nineteenth and early twentieth centuries, Charles has created scores of paintings that illuminate the racial fictions that structure popular culture's imagery. Central to his critical project is the ongoing deconstruction of unconsciously (and sometimes consciously) raced trademarks and trademarked styles. Everything from the Pillsbury Dough Boy and Aunt Jemima to Wonder Woman and Clorox Bleach has become subject to Charles's critical eye. Charles even reworks images that have become trademark signatures of other artists, such as Grant Wood's American Gothic and Norman Rockwell's Saturday Evening Post imagery. In working with and through popular-culture icons and trademarks, Michael Ray Charles draws on strategies developed by earlier African American artists, especially their use of Aunt Jemima. As Michael Harris ably demonstrates by collecting dozens of artworks including and/or commenting on Aunt Jemima, artists during the 1960s and 1970s “manipulated them for effect, deconstructing the visual sign, questioning Aunt Jemima's role as a popular trademark, and giving voice and humanity to all the black women aggrieved by the stereotypical representation of Aunt Jemima and the mammy image.”96 Calvin Reid also notes the influence of Robert Colescott and David Hammons and their use of appropriation on Charles's work.97
Charles's approach to such trademark images, however, diverges from that of earlier artists because his work condemns the stereotypes less clearly. Unlike his Black Art predecessors, Charles presents a more ambiguous attitude toward these trademarked images. He typically relies on hip-hop aesthetics to stylize his representations of African Americans and develop a sociopolitical critique of African American cultural life. (Forever Free) Aneminentevaluation (1995) displays the same sampling, layering, rhythmic flow/asymmetry, and irony as other hip-hop-influenced texts. The painting depicts three stereotypical minstrel-style men tearing through a two-dimensional image of a Clorox bottle. Two of the figures smile broadly and sport patriotic neckties, while the third figure gestures to the viewer to be quiet. All three figures wear minstrel gloves and possess hair that sticks up in all directions. On the left side, the words “DISTRIBUTED BY LIBERTY PERM PRODUCTS” are printed. On the right side, the painter's signature doubles as a copyright sign: “MICHAEL RAY ©HARLES '95.” Across the bottom, Charles has painted “ANEMINENTEVALUATION.”
At the most basic level, the painting samples the trademarked image of a Clorox bottle and classical minstrel figures. Layered on top of these images, Charles offers an allusion to Ralph Ellison's Invisible Man. In the novel, the invisible narrator forgets his name after an industrial accident at Liberty Paints when a coworker sabotages one of the machines because the narrator has tainted the company's Optic White paint and appears sympathetic to union organizers.98 This layered allusion deepens the significance of the Clorox bottle when paired with the marginal note that the image itself is distributed by Liberty Perm Products, a fictional company common to many of Charles's paintings. The minstrel figures have apparently infiltrated the most known and trusted bleaching/whitening agent in American culture. Like Ellison's fictional Lucius Brockway, the minstrel figures seem to have commandeered the purported “bleaching” action of Clorox and shifted the product's real effects. Offering an analogy to the influence of African Americans on American popular culture, the minstrels appear to have penetrated the heart of American culture despite the best efforts to “bleach” it and many of its citizens white.
Beyond its use of layered samples, Aneminentevaluation revels in rhythmic flow and rupture. Obviously, the words in the title flow together into a single word, thereby rupturing the viewer's initial expectation when searching for the painting's title. The viewer must locate the “breaks” themselves because Charles has blended the words, much like a hip-hop deejay weaves tracks and beats together to form a looped beat. On a deeper level, the title suggests that someone or something will be evaluated, but it is unclear whether the minstrel figures or a bleached American culture will be the subject of that evaluation. In addition, “eminent evaluation” evokes the legal procedure of eminent domain by which government takes private property for a public purpose. The slippage between the painting's title and this feature of modern property law suggests that the minstrel figures have invaded the Clorox trademarked image in order to remedy the violence associated with the history of “bleaching” American culture. In addition to the title's flow/rupture, the image itself depicts a rupture within American culture. The painting disrupts how viewers consume advertising images of Clorox without considering historic inequalities in the job market or the metaphorical significance of this very ordinary cleaning product. By juxtaposing the trademarked Clorox bottle with the white gloves and dark faces of the minstrel figures, the painting forces the viewer to consider how such trademarked images conceal the real work African Americans have done, because such marketing campaigns have rarely exalted the labor of African Americans, and how such menial labor has rarely translated into greater cultural or economic capital.
By offering several critical commentaries on cultural bleaching and eminent domain/evaluation within his series Forever Free, Charles produces an ironic vision of contemporary American culture. The putative freedom the series explores ultimately seems both less liberating and more ominous than the term initially suggests. It appears as if Charles concludes that freedom in the contemporary era involves resisting the stereotypes offered by popular culture and refashioning this imaginary domain. Charles describes his project in the following terms:
I'm choosing to speak about the African-American experience in a different way. By talking about what we have been calling the negative. By trying to speak about the invisible image, the invisible reality. I don't think that we can speak about the black experience and not conjure up all the stuff about stereotypes. I think a lot of art that is being done in that vein is real safe. I think my work has the same feel, but I've just decided to take more risks.99
For Charles, his work seeks to reclaim ownership over what American culture has bleached out or made invisible. By evoking the negative images of the past, Charles necessarily engages in an ironic project because he aims both to remind his audiences of what they have chosen to forget and to offer these stereotyped figures as potentially ambiguous and thus potentially reconstructable.
Trademarks and their fair use constitute linchpins to understanding Charles's imagery. As a legal symbol denoting authenticity, the trademark allows its owner to control the public image of its products and build goodwill with customers. Dilution—harming a product's good name—and free-riding—when a competitor selects a name close enough to an existing trademark to cause confusion—present potential threats to the holders of trademarks because they create ambiguity about the item's identity and worth where none existed before. Trademark protects against these harms because it assumes that any reputation was gained honestly and that competitors must compete fairly, not merely foster confusion. Charles's artwork questions these basic assumptions and suggests that the apparent stability of trademarks constitutes more of a problem than their ambiguity. Without a thorough examination of the invisible racial history they conceal, trademarks can further both material and imaginative disadvantages for African Americans. In particular, they can create a stereotypical world-view where African Americans are reduced to hackneyed clichés such as mammies or minstrel figures. For Charles and other hip-hop aesthetes, “fair use” ought to permit cultural workers the opportunity to create ambiguity and transform the meaning of objects or texts central to the American cultural imagination. Hip-hop aesthetics asks what is “fair” about copyright and trademark doctrines that permit the continued circulation of racist or racialized caricatures in American culture or hide racial inequality. Obviously, this is one instance where official legal discourse and African American culture conflict. Until now, legal discourse has persisted in relying on the metaphor of fair use, even though the doctrine appears to privilege one cultural perspective over another. In effect, Michael Ray Charles's deconstruction of trademarked images seeks to highlight the conflict between these competing norms.
Although generally critical of Charles's work, Michael Harris argues that Charles's most effective “critiques may be those of NBA basketball players, athletes he lampoons as coons acting out stereotypical behaviors and showing little responsibility.”100 In (Forever Free) The NBA (1995), Charles reworks the logo of the National Basketball Association (NBA). Instead of the ostensibly white athlete on the original trademarked logo,101 Charles paints a blackface player, replete with white gloves and the wild hair characteristic of Golliwog dolls. In the painting, Charles includes the echo of minstrelsy by replacing the word Fantastic in the NBA's slogan (“The NBA is Fantastic”) with Tantastic, another minstrel reference. The figure also displays a price tag with seven dollar signs, suggesting that the millions of dollars most players earn merely confirm racial stereotypes. By inverting the popular trademark and logo of the NBA, Charles notes the irony that many African American youths dream the sport will lift them out of poverty despite the ways the sport commodifies a particular form of blackness that stereotypes and pigeonholes other African Americans. For Charles, this constitutes an “unfair use” of racial stereotypes. By turning the basketball player in the NBA logo into a minstrel figure, Charles suggests that basketball, despite the success and fame of Michael Jordan and others, has been transformed into a modern-day minstrel show. Basketball has long been a “raced” sports spectacle in which racial identity stereotypically confers certain stylistic and physical advantages on a player's game. In its contemporary form, the NBA increasingly gravitates toward an African American aesthetic, a development that both fascinates and horrifies various segments of its white audience.
Because Charles relies on imagery with historically racist associations, his critics argue that his “recycling of stereotypes is insulting and degrading and should not be exhibited. They also feel that the artists [such as Charles] are making their reputations off of their own people's suffering.”102 Although his critics suggest that Charles cannot control his explosive imagery, his work rebuts this assumption by revealing unspoken or invisible relations between his subject matter and African Americans from many different walks of life. For example, in (Forever Free) Servin with a Smile (1994), Charles paints the Pillsbury Doughboy in the style of a black minstrel figure. This “unfair use” of Pillsbury's trademark offers a reminder that historically African Americans cooked for white folks and that the famous icon's smile makes invisible the inequalities experienced by house slaves and domestic servants.103 I reference Charles's appropriation of this logo as an “unfair use” not because it causes consumer confusion or dilutes the value of Pillsbury's trademark, but because it suggests the power of racialized icons. For Charles, such racialized imagined properties operate unfairly or discriminate, whether they intend to do so or not. The very metaphor of “fair use” implies a racial subjectivity. The copyright or trademark holder presumptively engages in fair use of their intellectual property because no existing doctrine has proven consistently effective in prohibiting or sanctioning racist or discriminatory uses. In many cases, logos or trademarked images operate at a subconscious level to make racial hierarchy invisible.
In (Forever Free) The NBA, Charles draws an analogy between artists and basketball players in which artists must produce art within the same racist or racialized culture that converts basketball players into well-worn stereotypes. The painter, no less than the athlete, must grin and play the minstrel figure, according to Charles. In a relatively ubiquitous picture accompanying many of his shows, Michael Ray Charles has been photographed with a penny in his mouth, echoing the very blackface images to which his work frequently refers.104 The catalog for his 1997 show at the Baffler Gallery at the Art Museum of the University of Houston has a penny affixed to the back cover. Charles also frequently uses the markings from copper pennies to produce his blackface or minstrel-inspired images. In an interview, Charles explained his use of the penny:
All the other coins are silver and reflect. And they are all facing one direction. The only coin of color, with Lincoln on its face, supposedly the Great Emancipator, is looking the other way. I made a painting entitled Quota Piece and it was after hearing Jesse Jackson speak. I was looking for something to balance the composition. The penny came to me as a token, a token coin. I balanced the composition between a Sambo image and the penny…. So I began signing my paintings with it as a trademark, as a cosignature. Every product has a trademark. It was my acknowledgement of tokenism.105
Through his strategic use of pennies, Charles suggests that the very images contemporary African American visual and basketball artists create must satisfy American consumer culture's demands for familiar imagery. The penny, which is seen as virtually worthless, frequently appears next to a copyright symbol in his work and offers an ironic commentary on its status as Charles's trademark.
Charles's decision to fuse trademarked images from Norman Rockwell's Saturday Evening Post and Disney with minstrel-era racist imagery illustrates an ongoing conundrum: how can African Americans and other historically marginalized groups contest such racialized imagery when those icons are privately owned? Obviously, Charles answers this question by engaging in what I have termed unfair use to make vivid the racist underpinnings or connotations of such trademarked icons or copyrighted images. This deconstruction of racist imagery, however, has not been embraced by everyone, especially other African Americans. They question his choice of subject matter and argue that it appears to merely recapitulate racist messages and provide only negative stereotypes for African American youth.106 Exploring the recent trend toward examining minstrel and other racist imagery, Michele Wallace argues that work like Charles's is at tempting to recuperate authentic African American culture from a lost era, whose racist advertising images constitute an abundant and integral part of American cultural mythology.107 For Wallace, it is the relative absence of cultural memory that has fostered interest in racist imagery because these images offer a unique lens through which to view the genealogy of African American culture. Echoing Wallace's claim, Charles suggests that the Sambo image “was a tool used by blacks to survive—to escape lashings, etc.”108 Charles culminates this interview by suggesting how he and Whitehead share a view about copyrighted and trademarked images: “I'm most interested in the evolution of images, ideas, and people. Despite the presence of these images and the stereotypes, blacks continue to strive.”109
In their tracing of the “evolution of images, ideas, and people,” White-head and Charles share critical race theory's shift from race and racism to the racialization of American culture. In a fascinating 1996 law review article, Alex Johnson Jr. argues that racial classifications, especially within the black-white binary, have functioned like trademarks.110 Johnson accepts Richard Posner's law-and-economics rationale for trademarks in which he posits that trademarks guarantee customers uniform product quality and thus minimize the consumer cost of evaluating or inspecting each individual product for flaws.111 Johnson then lists a set of racist assumptions that have historically been associated with black racial identity: intellectual inferiority, athletic prowess, sexual superiority or excessive sexual libido, laziness, and violence.112 He argues that African Americans, like a trademarked product, are assumed to possess these characteristics unless or until a particular African American demonstrates that they possess different attributes.113 This “showing” does not dispel such racial stereotypes; rather, it simply releases one lucky person from their punishing grip. Johnson concludes that race, due to its binary structure in American culture, maintains racial hierarchy and continues to “preserve the economic status of the white community.”114 The only way to dismantle racism, according to Johnson, is to “destabilize” racial trademarks, “(1) by improving the quality of the mark, or (2) through the process of shade confusion.”115 Historically, the Black Arts and Black Power movements sought primarily to “improve the quality” of black identity. Johnson supplements this strategy and argues that we must also create market confusion by replacing our primarily binary racial classification scheme with one that is multivalent and thus less efficient for creating and sustaining stereotypes.116 Johnson turns to ethnicity as a positive identification system that is passively ascribed but must be actively maintained. Such classifications, because they are based in history and cultural rites, require much greater research to ascribe than the passing glance associated with race. While this destabilization of race as a trademarked identity may make current affirmative-action and other antidiscrimination programs difficult to administer, Johnson argues that such strategies show signs of having decreased utility.117 Preserving race as the identity category for these programs would be a poor strategy. Rather, Johnson argues that the trademark exclusivity of black and white racial identities, even if race is still used as a basis for some community actions or cultural traditions, must be abolished. In other words, the idea that race denotes uniform identity or behavior must be destabilized. While Johnson admits that there may be short-term confusion or backsliding, the ultimate gains from dismantling racial trademarks as proxies for behaviors and identity characteristics would clearly outweigh any intermediate growing pains.118
Johnson's article, which appeared at the same moment that both Colson Whitehead and Michael Ray Charles emerged on the literary and art scenes, captures the challenge against which post–Civil Rights era activists struggle in resisting new/persisting forms of racism and racialized thinking. It grapples with how race finds a refuge within trademark rights. Further developing Johnson's argument, David Troutt has created a wonderful hypothetical exploring the tension between trademark law and racism during the post–Civil Rights era. For Troutt, any trademarked identity, whether positively or negatively charged, necessarily limits human lour-ishing.119 As part of his analysis, Troutt observes that “it is no great surprise that a discourse on commodification and signification in a consumption-based society should be able to draw on the example of so many African American men,” including Martin Luther King, Kareem Abdul-Jabbar, Tiger Woods, and Bobby Seale, all of whom have been involved in trademark and publicity-rights cases and controversies.120 He also notes that much cultural studies scholarship has lavished an equal amount of attention on the commodified images of African Americans, such as Michael Jackson, Michael Jordan, Tupac Shakur, and other hip-hop stars. Troutt's observations about the interrelationships among trademark law, com-modification, and race reveal the ongoing economic value of black identity within the marketplace. Despite or because of the love/hate relationship white America appears to have with stereotyped assumptions about African Americans, corporations want their products associated with African Americans as long as it titillates white audiences. If, however, the product becomes too “black,” it will likely fail or have a limited market. African American endorsers can mark a product as cool, or they can just as easily mark a product as exclusively black and thus too dangerous or “low” class. In this context, the increasing commodification of black identity requires post–Civil Rights era intellectuals or hip-hop aesthetes to engage with and criticize the logic of the trademark, even if it has furthered racial stereotypes and limited the “human flourishing” of many African Americans.
Colson Whitehead's recent novel Apex Hides the Hurt narrates the story of a disabled nomenclature consultant who has been hired to select the name for an African American town that was named for a white business leader. The town adopted the name Winthrop after its only white businessman, who made a fortune selling barbed wire. A black entrepreneur, however, wants to change the town's name to “New Prospera” to improve its image and has thus hired the naming consultant. This name, however, does not impress the narrator, who sets out to find another one. The novel recounts the nomenclature consultant's exploration of the town, its history, and its current inhabitants and records his ruminations about the function and meaning of names in American culture. He learns of a deal between one of the town's African American founders and the white businessman that led to its current name of Winthrop. The African American community had earlier chosen the name Freedom over the other proposed name, Struggle. The narrator, ironically an unnamed African American man, thus inviting comparisons to Ellison's Invisible Man, ultimately concludes that the town ought to return to the name it originally spurned. The novel culminates with the nomenclature consultant wryly observing the absurd phrases that will become common to the town's inhabitants: “I was born in Struggle. I live in Struggle and come from Struggle. We crossed the border into Struggle. Before I came to Struggle. We found ourselves in Struggle. I will never leave Struggle. I will die in Struggle.”121 Like many contemporary African American novels and artworks, Whitehead's novel includes abundant references to African American people and their cultural history without offering explicit racial claims or arguments. The novel's end, like that of John Henry Days, offers an ambiguous conclusion about the current state of African American life. It refuses to depict African Americans in stereotypically positive ways, and Whitehead's characters, unlike those created by previous generations of writers, are not clearly “race” men or women. Moreover, their connection to African American history and culture seems less certain and more optional than ever before. The narrator's decision to impose, in effect, the name of struggle on the town suggests that the specter of race remains, even if the town wishes to adopt the more color-blind “New Prospera.”
Paired with Michael Ray Charles's paintings, Whitehead's work testifies to the ongoing struggle contemporary African American artists and writers face in creating images and narratives as race has become a key element of trademarked identities. However, unlike earlier generations, they present and explore a wider range of artistic and life options for African Americans. Their work exemplifies the changing nature of property, from tangible to intangible goods, and how this new terrain offers a fundamental challenge to the ethos and activism that have historically underwritten African American cultural production. John Henry Days, Apex Hides the Hurt, and the Forever Free series focus almost exclusively on how African Americans struggle with and against racist and/or racialized narratives within the American cultural imagination, as opposed to the intentional and overt racism of previous generations.122 Claiming ownership over oneself and one's representation in this imaginary domain requires engaging with the legal rules that govern its distribution and control. For Whitehead and Charles, the imaginary domain and, by implication, intellectual property law provide an entry into the tortured psyches of both whites and African Americans, who continue to be marked by racism and racialization even if how it shapes social life has changed. Their work, like much contemporary African American cultural production, examines and signifies upon the fair/unfair use of extant symbols, icons, and narratives. Hip-hop aesthetics provides an artistic and narrative framework to explore how race continues to influence American life even after the Civil Rights Movement. The shift from fighting segregation to interrogating the continued circulation of raced images has challenged social justice activists. Unlike those involved in earlier movements that focused primarily on material inequalities, today's intellectuals must find a way to blend those traditional concerns with the increasing appropriation of African American cultural sensibilities. Ironically, borrowing African American style and/or authenticity is considerably more marketable and valuable than developing long-standing corporate relationships with African American people or communities and their leaders. This dynamic has led to a perceived (and probably real) crisis in leadership within the African American community.123
The work of both Charles and Whitehead reflects these tensions and emphasizes how copyrighted texts and trademark icons produce social fragmentation because they have become the primary path for individuals to enter into an imagined community (as opposed to the church or Civil Rights organizations for African Americans from the 1950s and 1960s) and are simultaneously the source for racism and racialization. This ambiguity in signification cannot be easily understood through legal discourse, even if its structures and concepts define intellectual property law, because law tends to view texts as thin and univocal, rather than as layered, rhythmic objects located in a specific narrative trajectory. Artist and writers—no matter their racial, ethnic, or gender identity—have examined the effect of advertising and marketing on American culture. For white artists, trade-marked and copyrighted images tend to show the ubiquity and banality of American popular culture. Andy Warhol, for example, appropriated everything from his well-known Campbell soup cans to Mickey Mouse to Aunt Jemima. His work deployed trademarks’ very repetition, fundamental to their value, as a metaphor for their corrosive influence on our interior lives. Warhol, however, traced the problem to their status as commodified images. Feminist artists such as Sherrie Levine and Cindy Sherman have used repetition to comment upon the circulation of received images, demonstrating how their ubiquity reenacts certain gender and classed narratives and distinctions. Like other hip-hop aesthetes, Whitehead and Charles understand such trademarked images and copyrighted texts as both constitutive of social being, and thus central to one's self-understanding, and perpetuating the circulation of racist myths and mythologies. Their work revels in the fair use of imagery from folk or popular culture even as it interprets that use as frequently anything but “fair.”
The best example of the dual function of such imagery is Michael Ray Charles's attempt to recuperate Aunt Jemima, although it could just as easily be applied to Whitehead's revision of John Henry. Black Arts-influenced painters, including Jeff Donaldson, Joe Overstreet, and Betye Saar, deployed Aunt Jemima's image to promote cultural nationalism during the 1960s and 1970s.124 These earlier paintings sought to correct the injustice done by over one hundred years of stereotyped advertising125 and depict Aunt Jemima in angry, defiant, and/or rebellious poses. By contrast, Charles employs Aunt Jemima in a more ambiguous fashion to explore and illustrate the contradictory effects of her continuing circulation, albeit in a recently updated form.126 Marilyn Kern-Foxworth has identified a number of modified or improved Aunt Jemimas in Charles's work, including Aunt Jemima as Wonder Woman, Rosie the Riveter, a presidential candidate, a pin-up, the Statue of Liberty, a farmer's wife in a remake of Grant Wood's American Gothic, and Marilyn Monroe.127
In two related images, Charles's For Women paintings from the Forever Free series depict Aunt Jemima as a mammy and as a recently updated middle-class woman. The words For Women also appear to reference Nina Simone's famous song “Four Women,” in which she gives voice to the struggles of four ordinary African American women who encounter extraordinary difficulties due to racial, gender, and class inequalities. By connecting his images to Simone's song, Charles suggests that this image not only is dedicated to women but acts as a representation of their ongoing struggles as well. In President (1993), Aunt Jemima is represented in typical blackface manner. Her face is so dark that her bulging eyes and white teeth, outlined with dark red lips, provide the only contrast to her skin. In addition, her head is adorned with a bright red handkerchief with white spots. Echoing Norman Rockwell's Saturday Evening Post drawings, Charles places this Aunt Jemima on the yellowed and faded front cover of “The Forever Free Post.” PRESIDENT is painted across the bottom, with the slogan “It's time for a clean sweep” printed underneath. In contrast to this faux-historical image, Charles also signifies on Aunt Jemima's most recent trademarked image in Vote Black (1993). In this companion painting, Aunt Jemima is portrayed as a successful middle-class woman with more fully developed features, replete with earrings and a professional hairstyle. The painting's setting has shifted from the front page of a newspaper to an election poster, encouraging the viewer to “ELECT” Aunt Jemima “FOR PRESIDENT” and to “VOTE BLACK.” The poster redeploys the red-and-white handkerchief pattern as the top half of its background, with the bottom portion colored blue with white stars, thereby completing a lag motif. Even though much has changed between the respective creations of the two Aunt Jemima trademark logos, the tagline remains the same: “IT'S TIME FOR A CLEAN SWEEP.”
In both versions, Charles is engaging in a fair/unfair use of Aunt Jemima's trademark image. Relying on and criticizing its historical and current iterations, these paintings interrogate the meaning and the effects of the trademarked image. On the one hand, Charles notes the ironic undertones of the original icon by reprinting it on the “Forever Free Post,” thereby suggesting that any purported freedom for African Americans has existed within a racialized and racist American culture. On the other hand, Charles's second painting acknowledges that public perceptions and stereotypes have improved. However, the improvements still operate as stereotypes, just more positive ones. The older stereotypes lurk in the background, represented by the handkerchief transformed into a background print. The need for a “clean sweep” remains, even after the Civil Rights Movement. His copying of these trademarked symbols serves as a political and cultural commentary on the racialized ideas Aunt Jemima has fostered. They do not cause consumer confusion about the origin of his paintings. Thus, they would likely satisfy either copyright or trademark's definition of fair use. Charles implies that we must purify American culture, starting with the image of Aunt Jemima herself. But she remains, in a sanitized form. The idea that somehow Aunt Jemima, either the mammy or the middle-class version, could become president, while desirable, still seems a bit like a science fiction, even after the recent election of Barack Obama. From this angle of vision, Charles's Aunt Jemima represents what I call an unfair use because she reminds us that the very ownership interests that copyright and trademark confer continue to effectively disenfranchise African Americans by reducing them to minstrel figures, even in a new and improved form. Although consumers elect to purchase Aunt Jemima thousands of times a day, this consumer choice has not translated into all those consumers deciding to “vote black,” as the painting suggests. The slippage between the two kinds of choices, consumption and representation, questions the recent corporate interest in channeling consumers to commodifying their dissent by purchasing particular products and/or services. Rather, the For Women series implicates the very structures of commodification in furthering racial stereotypes, even if they put a kinder and gentler face on them.
Through their deconstruction of popular icons, such as John Henry and Aunt Jemima, Whitehead and Charles use hip-hop aesthetics to demonstrate that even putatively fair use of intellectual properties, by rights holders and critics alike, can result in unfair or unjust effects on historically marginalized people. In its current, color-blind form, trademark and copyright law provides little recourse to challenging such representations without recirculating the offending images and texts. Fair use, as legal doctrine and cultural metaphor, ultimately offers an ironic reading of the relationship between African Americans and intellectual property law. Derrick Bell's fictional tale of “racial royalities” ultimately concludes that the American cultural imagination has appropriated African American styles and enriched many white Americans. Despite the fantastic mechanism described in his short story, legal doctrines and cultural interventions have proven only partially successful in remedying these historical wrongs. Critical race theorists and hip-hop aesthetes have sought to imagine alternative ways of conceiving of and distributing imaginative resources, but the ongoing circulation of raced images and texts has proven resistant to transformation. Although cases such as Campbell and SunTrust suggest that African American artists can deploy existing texts in either parodic or transformative ways, both rulings eschew race or racial subjectivity as an explicit component of legal doctrine. Rather, the rules they apply/announce continue the fiction of an unraced intellectual property law. Cases involving hip-hop music also avoid cultural explanations and have become increasingly confused and confusing regarding the state of sampling, fair use, and the de miminis defense. Despite the widespread popularity of sampling and appropriative borrowings within African American culture, intellectual property law still clings to a color-blind jurisprudence even as race and ethnicity frequently structure the unspoken subtext for these seemingly contradictory decisions.
1. D. Bell 1985, 13.^M
2. D. Bell 1987, 24–25.^M
3. D. Bell 1987, 31.^M
4. D. Bell 1987, 43.^M
5. See D. Bell 1992, 20.^M
6. D. Bell 1992, 22.^M
7. D. Bell 1996, 145.^M
8. D. Bell 1996, 147–148.^M
9. D. Bell 1996, 150.^M
10. See generally D. Bell 1980.^M
11. D. Bell 1987, 28.^M
12. See Campbell v. Acuff-Rose 1994; SunTrust Bank v. Houghton Mifflin 2001.^M
13. See 17 U.S.C. sec 101–106.^M
14. 17 U.S.C. sec 107.^M
15. Nimmer 2003, 282.^M
16. Nimmer 2003, 280.^M
17. J. Cohen 2005, 370.^M
18. See also Coombe 1998.^M
19. J. Cohen 2005, 372.^M
20. Bradford 2005, 760.^M
21. Bradford 2005, 761–767.^M
22. Bradford appears to have directed her proposed doctrine at primarily commercial, as opposed to critical or academic, uses. See also Litman 2002, 134–139.^M
23. Austin 1995, 157.^M
24. See Dinerstein 2003, 318–320.^M
25. In some respects, John Henry Days elaborates on and anticipates concerns articulated by scholars during the past twenty years. See Gaines 1991; Coombe 1998; Vaidhyanathan 2003; McLeod 2001, 2007.^M
26. See Aoki 2007; Arewa 2006a, 2006b; K. Greene 1999.^M
27. Whitehead 2001, 198–205, 250–261.^M
28. Whitehead 2001, 102.^M
29. Whitehead 2001, 88.^M
30. Whitehead 2001, 49.^M
31. Whitehead 2001, 35–38.^M
32. Whitehead 2001, 59.^M
33. Whitehead 2001, 265.^M
34. Whitehead 2001, 263.^M
35. Whitehead 2001, 265.^M
36. Whitehead 2001, 107.^M
37. Whitehead 2001, 108.^M ^M
38. Whitehead 2001, 112–117.^M
39. 17 U.S.C. sec. 107(1).^M
40. UNESCO 2005, 4–5.^M
41. See Grand Upright Music v. Warner Brothers 1991; Jarvis v. A&M Music 1992; Campbell v. Acuff-Rose 1994; SunTrust Bank v. Houghton Mifflin Company 2001; Newton v. Diamond 2003; Bridgeport Music v. Dimension Films 2005.^M
42. Campbell v. Acuff-Rose 1994, 581.^M
43. D. Sanjek 2006, 279–280.^M
44. Campbell v. Acuff-Rose 1994, 589.^M
45. SunTrust Bank v. Houghton Mifflin Company 2001, 1271.^M
46. SunTrust Bank v. Houghton Mifflin Company 2001, 1270.^M
47. SunTrust Bank v. Houghton Mifflin Company 2001, 1273.^M
48. Whitehead 2001, 380–383.^M
49. See generally New n.d.^M
50. Whitehead 2001, 204.^M
51. Whitehead 2001, 101.^M
52. Whitehead 2001, 102–103.^M
53. Whitehead 2001, 205.^M
54. For an effort to revise copyright to permit hip-hop and African American ironic uses of existing texts, see Madison 2005, 413.^M
55. 17 U.S.C. sec. 107(3).^M
56. A confusing jurisprudence has developed around this factor and the threshold test for making a copyright infringement claim. In order for a copyright owner to demonstrate a prima facie case, they must show that the copying was substantial enough to rise to the level of infringement. The de minimis doctrine requires that the copying must go beyond “a technical violation of a right so trivial that the law will not impose legal consequences” (Ringgold v. Black Entertainment Television 1997, 74). In Bridgeport, the court held that any copying of recorded sound constitutes an infringement (Bridgeport Music v. Dimension Films 2005, 803). See also Beck 2005; Schietinger 2005.^M
57. Arewa 2006b, 626–627.^M
58. Jeremy Beck asks a provocative question about how courts ought to determine or observe similarity between musical compositions. Beck argues that books, paintings, and film stills constitute “fixed time” objects, whereas music offers a “real time” text. He asks: “How many times would a fact finder need to listen in real time to a pair of recordings in order to analyze them? Would such incessant repetition—and the resulting familiarity—present a greater risk of infringement?” (2005, 10–11).^M
59. Arewa 2006b, 627, 641–644.^M
60. Gilroy 2000, 337.^M
61. 17 U.S.C. sec. 107(4).^M
62. A&M Records v. Napster 2001, 1024–1029.^M
63. A&M Records v. Napster 2001, 1034.^M
64. Field v. Google 2006, 20.^M
65. Ty v. Publications International Limited 2002, 518.^M ^M
66. SunTrust Bank v. Houghton Mifflin Company 2001, 1276.^M
67. SunTrust Bank v. Houghton Mifflin Company 2001, 1277.^M
68. Courts’ willingness to enforce copyright against hip-hop has not necessarily or uniformly enriched the sampled artists, such as George Clinton and James Brown. Rather, it provides further illustration of the historical racism within the recording industry in which the major labels required even popular African American artists to sign contracts that did little to protect their interests.^M
69. Richards 2006, 10.^M
70. See generally New n.d.^M
71. Cadenhead 2006. See also N. Kelley 2003, 115–127; Kennedy 2002; Ayo 2005.^M
72. Kennedy 2002, 45. See also M. Watkins 1994, 131–132.^M
73. Kennedy 2002, 130–133.^M
74. In an ironic twist, Randall Kennedy recently testified on behalf of a white man accused of a hate crime because the man had shouted the N-word at his African American victim during the assault. Kennedy agreed to be an expert on the use and meaning of the N-word, sharing his insight that the N-word possesses many meanings, not just its function as a term of white supremacy. See Kilgannon 2006.^M
75. Moffat 2004, 1483.^M
76. Moffat 2004, 1488–1489.^M
77. 15 U.S.C sec 1127.^M
78. Halpern 2005, 241.^M
79. For a discussion of the complexity of the Black Arts Movement, see Smethurst 2005, 15.^M
80. Richards 2006, xxvii.^M
81. Judy 2004, 114.^M
82. Judy 2004, 115.^M
83. Sirmans 2005, 92.^M
84. Basquiat frequently relies on the copyright symbol in his work. The context of these symbols, however, suggests he ought to be invoking trademark. This mistaken use, because of its ubiquity within his oeuvre, calls attention to Modernism's privileging of mimesis and representation over authenticity. In other words, Basquiat situates copyright and trademark as opposing logics in which there is a sliding scale upon which viewers can rate the relative originality or derivative quality of a given work. Thus, Basquiat offers a subtle but ironic commentary on intellectual property's symbol of authenticity by replacing trademarks with copyright marks, which regulate who can possess the rights to copy a text or phrase.^M
85. Nielsen 1997, 34.^M
86. See R. Kelley 1998, 213.^M
87. See generally Tate 2003.^M
88. Anten 2006, 433.^M
89. Coombe 1998, 61.^M
90. 15 U.S.C. sec 1125 (c)(3)(A)(ii).^M
91. S. Greene 2006, 44.^M ^M
92. S. Greene 2006, 77.^M
93. Halpern 2005, 238; Doellinger 2005, 404.^M
94. In a related development, a 2001 exhibition brought together patents, copyrighted texts, and trademarked items in one show. See Pictures, Patents 2001.^M
95. See also the artwork of Tania Hargest (Freestyle 2001, 40–41).^M
96. Michael Harris 2003, 107.^M
97. Reid 1998, 5.^M
98. Ellison 1995, 196–250.^M
99. For quotation, see Bacigalupi and Kern-Foxworth 1997, 21.^M
100. Michael Harris 2003, 202.^M
101. Urban legends identify the model for the logo as Jerry West.^M
102. Juliet Bowles 1997, 3.^M
103. Charles has commented that the painting also provides a commentary on Ice Cube's character from the movie Boyz in the Hood, whose name is Dough Boy. According to Charles, “serving” is “slang for selling drugs” (1998, 10).^M
104. Charles 1998, 2.^M
105. Bacigalupi and Kern-Foxworth 1997, 28.^M
106. R. Cohen 1997; Heller 1998.^M
107. Wallace 2004, 120–121.^M
108. Bacigalupi and Kern-Foxworth 1997, 28.^M
109. Bacigalupi and Kern-Foxworth 1997, 30.^M
110. Obviously, this analogy will inevitably break down because trademarks are alienable (i.e., the owner can disavow his trademark) and racial identity tends to be inalienable, although historical concerns about passing suggest that some people have alienated their racial identity.^M
111. A. Johnson 1996, 906.^M
112. A. Johnson 1996, 908–909.^M
113. A. Johnson 1996, 917.^M
114. A. Johnson 1996, 914.^M
115. A. Johnson 1996, 926.^M
116. A. Johnson 1996, 928.^M
117. A. Johnson 1996, 941–942.^M
118. A. Johnson 1996, 944–945.^M
119. Troutt 2005, 1205.^M
120. Troutt 2005, 1194.^M
121. Whitehead 2006, 211.^M
122. This is not to suggest that previous generations of activists did not engage with the racism of popular culture. Rather, it acknowledges that such interventions have increasingly become the central focus of civil rights activism. See N. Kelley 2004, 146–147; Bynoe 2004, 17–18.^M
123. See N. Kelley 2004; Kitwana 2002; Bynoe 2004; Boyd 2002, 2004.^M
124. See Michael Harris 2003, 101–124.^M
125. See Kern-Foxworth 1994, 61–113.^M
126. See also Public Enemy 1990.^M
127. Kern-Foxworth 1997, 14.^M ^M