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 Abstract

Excerpted From: Tonya M. Evans, De-gentrified Black Genius: Blockchain, Copyright, and the Disintermediation of Creativity, 49 Pepperdine Law Review 649 (March, 2022) (205 Footnotes) (Full Document)

In a 2016 acceptance speech during the Black Entertainment Television (BET) Awards, actor and activist Jesse Williams used the phrase “gentrifying our genius” to refer to the insidious process of misappropriating the cultural and artistic productions of Black creators, inventors, and innovators. In that speech, he poignantly and unapologetically condemned racial discrimination and cultural misappropriation:

We've been floating this country on credit for centuries, yo, and we're done watching and waiting while this invention called whiteness uses and abuses us, burying [B]lack people out of sight and out of mind while extracting our culture, our dollars, our entertainment like oil--black gold, ghettoizing and demeaning our creations then stealing them, gentrifying our genius and then trying us on like costumes before discarding our bodies like rinds of strange fruit. The thing is though ... the thing is that just because we're magic doesn't mean we're not real.

Those three power-filled words, “gentrifying our genius,” not only confronted the atrocities of creative despoilment committed by those who seek to perpetuate the social construct of whiteness, but they also amplified the incalculable intrinsic value of diasporic cultural contributions. His entire speech also shined a bright light on the dark history of devaluating Black artistry and the simultaneous systemic misappropriation and hyper- monetization of the same. Both jeered and revered in the same moment. Given the value placed in the United States on property ownership of all kinds as a matter of holding power within society, the ability of historically marginalized people to create, own, and monetize intellectual property in an increasingly digital society is inextricably linked to economic empowerment in the future of wealth.

Property ownership has been linked to personhood itself. Copyright ownership (and its constitutional twin, patent) was deemed so valuable that the Intellectual Property Clause is the only clause to express its intention clearly. Despite impassioned argument and debate over a range of topics at the Constitutional Convention, the Intellectual Property Clause passed “without debate or controversy.” Although the Copyright Act focuses more on ownership than authorship, as the Act evolved over time, one way that Congress sought to empower creators to create the transfer termination right in 1976 was to replace the initial and renewal periods of copyright protection.

Owners of copyrighted works created on or after January 1, 1978, were first empowered to begin terminating any transfers of those works on January 1, 2013. But for the termination right, an artist's rights to literary and artistic works would be forever subject to the control of the original transferee. The copyright transfer termination right is a powerful inalienable, nonwaivable right held by all copyright creators to terminate any lifetime transfer of copyright decades after transfer. However, it seems especially powerful for artists of color who have historically been forced, hoodwinked, and cajoled into parting with all dominion and control over their literary and artistic productions or who were simply unaware of their rights and, therefore, did not fully understand or appreciate the potential value of the rights at issue or the worth of their creations.

The transfer termination right permits authors who transferred ownership of their copyrights, perhaps early in their career, without the benefit of knowing its true value, to reclaim control of, and to monetize, their work beginning thirty-five years after the transfer. This inalienable, nonwaivable right to divest a transferee of the copyright transfer, however, is not automatic. To exercise the right, an author must know of the right's existence and carefully manage the morass of rules regarding the opening of the notice period and timely and effective delivery of notice to the correct parties. Failure to walk this procedural tightrope successfully and within the statutorily prescribed period has significant consequences because the termination right is “use it or lose it.”

Victor Willis, a Black man, original member of the Village People, and songwriter of the evergreen karaoke hit Y.M.C.A., is the first artist of any race to successfully terminate the transfer of a post-1977 copyrighted musical composition under § 203 of the 1976 Copyright Act. Willis may have been the first, but since 2013, artists from all entertainment industry sectors have served transfer termination notices that were thought, at the time of contract by all parties, to be irrevocable and perpetual. “The list of successful artists includes the late Prince Rogers Nelson (aka Prince), who, after an infamous and legendary 18-year rights battle, reclaimed his music catalog from Warner Brothers beginning with his debut album released in 1978.” And most recently, rhythm and blues mega-songstress Anita Baker announced on Twitter that all of her “children” were coming home. After engaging in a contentious rights tug-of-war with her recording company, she successfully reclaimed all her masters under decades-old contracts.

By knowing of, and effectively exercising, their copyright transfer termination rights, Willis, Prince, and Baker all avoided the devastating financial, emotional, psychological, and generational consequences of gentrified genius that Williams spoke of as he accepted the 2016 BET Humanitarian Award. These artistic and business titans exercised their termination power in the full-throated manner of the Black Power movement of the 1960s. They achieved what so many creators of color could not or did not do: they reclaimed control of their creativity and thereby recentered themselves in economic power grounded in property ownership in the United States.

This Article chronicles the nefarious history of the creative disempowerment of creators of color and then imagines an empowering future for those who successfully exploit their creations by fully leveraging copyright ownership and transfer termination. I include those who leveraged opportunity through assignments and licenses, and later, those who exercised their termination rights to secure a better deal with the original transferee, terminated and entered into deals with other transferees, or went it alone and exploited their copyrights on their own. The termination right clearly benefits all copyright creators; however, members of marginalized and disenfranchised communities may stand to benefit even more from the second bite of the copyright apple. I assert that utilizing blockchain's decentralized technology, smart contracts, and non-fungible token standards can better protect Black artists against disenfranchisement at the hands of a codified system of intentional friction to discourage or deny the reclamation of rights.

Accordingly, in Part II, I examine the history in America and throughout the African diaspora of cultural misappropriation and critique the gentrification of Black creative genius. I explore gentrification as it is applied more broadly to real property and then discuss its application to intellectual property, generally, and copyright specifically.

In Part III, I discuss the subject matter of copyright protection and the nature and mechanics of the transfer termination right. Specifically, I examine the history, purpose, and congressional intent of the right, as well as the method and the complexities of timing of notice and termination.

In Part IV, I examine the pre-window fervor and speculation of stakeholder commentators around the likely impact of § 203 terminations prior to 2013. I examine the actual impact since 2013 and a forecast of likely trends, as described in the Termination Notices study.

Finally, in Part V, I discuss the role that blockchain technology, smart contract code, and non-fungible token standards could play in automating codified protections. Removing the educational and legalistic barriers to exercising one's termination rights and automating the transfer termination process could ensure that all artists have actual--not theoretical--rights, especially disenfranchised creatives victimized first by powerful industry intermediaries and then by the copyright regime created by those same industry stakeholders (and blessed by Congress) to protect industry, rather than creator, interests.

[. . .]

Often poor economic conditions, discriminatory practices, misappropriation, and unscrupulous representation have led to unconscionable deals (even by music industry standards) that have left even the most prolific and successful artists destitute and indebted, or simply with no attribution, compensation, or deal. However, a decentralized autonomous termination right could level the negotiating playing field, neutralize the impact of predatory and discriminatory practices, remove rent-seeking gatekeepers, and give Black artists a true second bite at the proverbial apple.

With an automated, decentralized, and de-gentrified system, these artists can finally raise a proverbial fist and achieve true entrepreneurial and economic power by successfully leveraging their rights early in a creative work's life cycle and then confidently reclaiming copyright decades later after the work has had a sufficient opportunity to prove its value and worth. Aspirational, but attainable via decentralized autonomous copyright termination.

Professor, Penn State Dickinson Law. B.S., Northwestern University; J.D. (Dean's List), Howard University School of Law (cum laude; editor-in-chief, Howard Law Journal).

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