Abstract

Excerpted From: Sydni J. Wynter, Lift Ev'ry Voice and Sing: Tracing the Legacy of Appropriation of Black Artists under U.S. Copyright Law, 48 Columbia Journal of Law & the Arts 237 (2024) (170 Footnotes) (Full Document).

On Wednesday, November 9th, 2023, Luke Combs took home the coveted “Song of the Year” distinction at the Country Music Awards for the song “Fast Car,” making it the first time a Black songwriter has won the award. In reality, Combs is not Black, and the 2023 “Song of the Year” contender was recorded and released nearly thirty-five years ago. Tracy Chapman, a Black queer woman, first released the folk classic “Fast Car” in 1988. The song retells the brutal reality of a young couple dreaming of a better life while struggling to break out of the cycle of poverty after a series of misfortunes in their lives. While Chapman's song received some critical acclaim in the United States after its initial release, reaching the sixth spot on the Billboard 100 chart for a week in 1988, Combs's 2023 cover of “Fast Car” peaked at number two on the same chart and remained in the top 10 for forty-two weeks. Section 115 of the Copyright Act permits artists to reproduce covers of another artist's commercially released music without seeking permission from the original artist. This covering and re-popularization of Tracy Chapman's folk classic is not a rare occurrence, but is rather exemplar of a long tradition of the lifting--or rather appropriation--of Black music for a mainstream audience by white artists. The tale of Black musicians in the United States is one defined by an extensive history of exclusion, exploitation, and most enduringly, appropriation.

From the inception of America itself, the Founding Fathers recognized the value in producing, protecting, and promoting creative works by the public. Enshrined in the Constitution itself, Congress was unanimously granted the power to “promote the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” The enactment of a national copyright law thus stood to foster the development of a competitive American culture, and help to balance the public value of creative works with author's property rights in their creations. The eighteenth, nineteenth and twentieth centuries birthed five iterations of the Copyright Act: in 1790, 1831, 1870, 1909, and the modern Copyright Act of 1976. Notably, no version of copyright law has explicitly mentioned race, which aids in perpetuating the idea that copyright is inherently “colorblind.” However, copyright law has consistently failed to adequately recognize and protect Black musicians since its inception.

First outlined in the Constitution under the “Copyright clause,” the earliest iteration of an intellectual property right did not apply to Black Americans, who--as slaves--were not considered a full person at the time of writing, and therefore unable to own any type of property. To call the system racially neutral would assume that copyright and intellectual property rights have existed within a vacuum--unaffected by the social, cultural, and political structures that have denied Black Americans equal citizenship since America's founding. As Black musical traditions have undoubtedly formed, shaped, and molded the very bedrock of American popular culture, and nearly every genre of music it has produced, the inability for copyright law to adequately rectify shortcomings in the music business through statutory protection has greatly contributed to the persistence of a culture of appropriation within the culture of American music. It is therefore not that Copyright has a “race” problem, it has an appropriation problem--one that undeniably and disproportionately impacts Black artists. To best reform the copyright system to address modern issues of appropriation, considering technological advancements in the music industry such as artificial intelligence and the rise of streaming, it is necessary to understand the historical patterns of copyright inequity that have disproportionately affected Black musicians.

The inherently intertwined nature of Black music and Black culture--with Black musical traditions being borne out of the social, political, and economic disenfranchisement of the community throughout history--exacerbates the harm felt by artists who have their work lifted without appropriate compensation. Between the rise of streaming allowing more independent artists to produce music without the legal knowledge that major labels possess, and the generation of artificial intelligence allowing fans to produce music by their favorite artists without the artists' input or knowledge, new technology has created a unique opportunity to alter the existing legal framework of copyright. Specifically, lawmakers have the rare opportunity to reform the existing licensing substructure. Compulsory mechanical licenses in particular have historically perpetuated these behaviors, and in the modern context could potentially aggravate these issues.

This Note will trace the lineage of the structural inequities of copyright law that have generationally impacted Black musicians across genres, arriving to modern day issues and the technological advances that inflame these very inequities. While beginning with a conveyance of the statutory provisions that aided in unequal treatment of Black artists under copyright law is crucial, the focus of analysis and critique will center on copyright law's development of the compulsory licensing scheme and its unique impact on Black artists by questioning the efficacy of the existing licensing structure. Parts I and II will look at the earliest iterations of the Copyright Act: from 1790 to 1909, and the legal status of Black Americans through a series of case studies looking at the Act's effect on Black artists during the emergence of American Popular music in jazz, blues, and rock'n'roll. Part III will examine the creation of modern copyright law against the backdrop of the Civil Rights movement and the emergence of rhythm & blues and hip-hop. Part IV will argue the shortcomings of the 1976 Act and modern challenges that copyright law is unequipped to address and suggest the adoption of an institutional moral right standard for musicians under Copyright law.

The development of artificial intelligence and its ability to replicate the style of artists, alongside the growing presence of digital streaming and independent artistry reinvigorates the continued tradition of the appropriation of Black artists. The modern issues Black artists face in these realms are not occurring in a vacuum but are rather a product of a tradition of imitation, appropriation, and distortion under the copyright scheme--and is therefore pertinent to contextualize the historical treatment of African Americans under intellectual property laws to best address the continuation of these issues in a new generation of music.

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The Black musical experience encapsulates the broader narrative of Black history in America, illustrating a story of appropriation, exploitation, and inequality. Despite having often found their autonomy, livelihoods, and culture mocked, imitated, and appropriated throughout history, these artists have illustrated the very image of resilience. Denied credit, compensation, and acknowledgment in the generational cycle of marginalization and exploitation, Black artists have routinely adapted and shifted to continue to not only use music as an expression of the Black experience, but to continue to create as society takes. In the modern legal landscape, the issue of appropriation and undue profiting from the work of Black artists persists, and continually raises questions about the efficacy of the current copyright infrastructure and its ability to protect the rights of Black musicians. While copyright law operates under supposed “color-blind” neutrality, the system has historically been unable to recognize, respond, and reform the system to better address the social hierarchies and inequities that prevent equal protection for the works of these artists.

From the groundbreaking, industry shifting, and culture-defining contributions through the creation of jazz, rhythm and blues, rock and roll, and now hip-hop, Black artists have continually supported the development of American Popular culture despite the challenges presented by existing intellectual property law. Now, the evolving digital landscape, characterized by streaming platforms and emerging technologies like artificial intelligence, presents both opportunities and challenges for artists. These advancements implicate legal and economic threats to the viability and autonomy of their livelihoods as artists and will undoubtedly and disproportionately affect marginalized communities. However, considering the historical treatment of Black artists under copyright law, and advancements that implicate novel legal questions, intellectual property law is existing in a pivotal moment, with the ability to right historical wrongs and promote equity within the music industry.

This Note proposed a multifaceted approach to addressing these historical, systemic issues that have pervaded genres and generations of Black music. Central to this approach is the adoption and recognition of a moral right for musical artists--an acknowledgement of the intrinsic connection between creator and creation. The recognition of this right would grant artists the right to control the use and exploitation of their works, empowering them to retain autonomy in their works and fair economic distribution. Additionally, the adoption of a voluntary licensing system would grant artists further control over the use and appropriation of their works, while also bolstering a new generation of collaboration and relationships between artists, creators, and the industry to look to the future of music and licensing. By empowering artists to take control of the use of their works, the voluntary licensing system would allow independent artists to better navigate the complexities of the music industry submerged in a digital age, while also promoting innovation and collaboration across generations and genres.

The modern challenges facing Black artists in the music industry today are neither novel nor isolated, but are rather a continuance of a broader, historical tradition of social and societal injustice in the realm of music. By reimagining intellectual property law to directly address these issues and rectify the sins of its past through revolutionary approaches to understanding the digital music age, copyright law can once and for all, truly be just.

J.D. Candidate, Columbia Law School, Class of 2025; B.S. New York University, Class of 2022.