Excerpted From: Kristen Brown, Claiming a Piece of the Pie: Race, Copyright Law, and Digital Platforms, 17 Southern Journal of Policy and Justice 1 (Spring, 2023) (131 Footnotes) (Full Document Requested)


NoPictureFemaleThe twenty-first century provides a massive landscape for the capitalization of creativity. Indeed, incentivizing ingenuity underpins the creation of the Copyright Act of 1909. Popular online platforms such as YouTube, Instagram, and Tik Tok may provide a means for artists to capitalize from their work. Yet, remnants of the historic disparate treatment of black artists remains at issue when determining which shareholder reaps the financial benefits of such creativity. The Digital Millennium Copyright Act ("DMCA") primarily governs copyrightable material on digital platforms. The legislative history of the DMCA hinges on protecting "copyright owners" against massive piracy. However, the grant of protection founded on copyright ownership centralizes protection for certain stakeholders to the detriment of others. So, the issue arises of how black artist and content creators fit into the puzzle of protection in order to enjoy economic gains derived from their creativity within this new digital era. Another question arises of how to implement regulatory measures without stifling creativity from the perspective of the artist, copyright owner, and content creator. Copyright regulatory measures stemming from the Copyright Act of 1909 traditionally delineates great protection to the "copyright owner." However, inequitable contract deals, and divisive industry practices often stripped black artists of ownership dominion. Consequently, black art was exploited for the financial benefit of other stakeholders. Regulatory measures fortified through increased protection under DMCA may have the unintended impact of stifling black creativity and redistributing economic gains to nonblack stakeholders. Consequently, the protection of black art should center on bolstering the ownership dominion of black artists and content creators.

Part I of this comment presents the evolution of Copyright law. Part II discusses the historic treatment of black artist. Part III analyzes both the pros and cons of the social media platform, TikTok relative to black artists and content creators. Part IV discusses my critique of the 2022 proposed amendment to the Digital Millennium Copyright Act ("DMCA") and my recommendation on how to both stimulate and protect black artistry on social media platforms. Part V ends with closing thoughts.

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With the emergence of the digital era, black artists now maintain a greater opportunity to receive economic incentives of the copyright system. However, in protecting black artists, policy measures must seek to balance interest grounded in respecting copyright law versus interest grounded in incentivizing creativity. Increased regulation of social media platforms does not equate to increased protection for black creators. Instead, as observed through my critique of the Smart Act, increased regulatory measures may stifle black creativity. Consequently, the protection of black art should center on bolstering the ownership dominion of black artists and content creators as exemplified through the blanket synchronized licenses facilitated through a collective organization.