On January 15, the U.S. Copyright Office held an event called Copyright and Social Justice, part of the Copyright Matters series. As the title suggests, the topic was the intersection between social justice and copyright law. The ultimate message the panel expressed was that it is critical for all members of society to have equal access to the copyright system and its accompanying benefits. That can be achieved through artist education. Copyright lawyers and policymakers need to learn and understand the perspective of creators to better shape and advocate for the copyright laws, and in turn, they will be able to better educate creators on their rights.
The four-member panel consisted of Lateef Mtima, professor at Howard University School of law and founder and director of the Institute for Intellectual Property and Social Justice (“IIPSJ”); Robert Brauneis, professor at George Washington School of Law; Kim Tignor executive director for IIPSJ and founder of Take Creative Control; and Hollis Wong-Wear, a Grammy-nominated singer, songwriter, speaker, creative producer, and advocate for creators’ rights.
A member of the USCO opened the event by quoting Justice Sandra Day O’Connor’s opinion from Harper and Row v. Nation Enterprises, which represents a touchstone of copyright law: “The Framers intended copyright itself to be the engine of free expression. By establishing a marketable right to the use of one’s expression, copyright supplies the economic incentive to create and disseminate ideas.”
The Honorable Hakeem Jeffries, U.S. representative from New York and member of the House Subcommittee on Courts, Intellectual Property, and the Internet, delivered the opening remarks. Amongst other things, Congressman Jeffries emphasized the power to create robust intellectual property stems from the Constitution and the Framers truly recognized the importance of useful arts, namely copyrights.
Afterwards, the panel moderator, Whitney Levandusky, turned to Professor Mtima to provide context on the intersection between copyright and social justice. Consistent with our Constitutional guarantee of free expression, the IP clause fosters creative endeavors and copyright a necessary component of achieving a more perfect union. However, the ability to create and subsequently reap the economic benefits must be available to all members of society. In other words, everyone must have an equal opportunity to participate in copyright, such participation involves access to the copyright system and the accompanying benefits. Historically, there has been social injustice with respect to accessing and reaping the benefits of the copyright system. For example, many creators, and particularly racial or ethnic minorities, have disproportionally suffered the negative consequences of pirating creative works and have not been able to enjoy the fruits of their creative labor. Through the lenses of law and economics, Professor Mtima compared the situation to buying land to grow crops. It would be inefficient if all the land purchased was fertile but crops would only be harvested on two-thirds of the land, the extraneous third would provide a complete harvest. Similarly, if only two-thirds of creators are able to be protected by copyright laws, society is missing a critical piece of the puzzle. Later on, Professor Mtima pointed out that copyright has been an enemy for marginalized communities; however, copyright should be their friend and we need to collectively work together to ensure marginalized communities have access to the copyright system.
Ms. Hollis, the representative creator on the panel, explained that copyright is power for creators. Creators often overlook the importance of protecting their works and copyright can become a low priority. She explained that musicians don’t always think of themselves as a central tenant of copyright law, but in fact, they are. Creators are a central tenant to the copyright system and should fight to protect their work, and be proud that they are part of a system dedicated to protected their creativity. She gave the example of Prince’s struggles with winning back his master sound recordings. The Prince example illustrates that protecting and owning one’s creative work is extremely important both from a social perspective and economic perspective. Ms. Hollis later explained that copyright lawyers have a lot to learn from creators. Artist education is very important and with social media, it is easy to reach out to creators. In other words, creators should be ambassadors that connect the copyright law world to fully understanding the ramifications of how copyright plays out in reality. Creators often believe that their only leverage in reaping economic benefits of their work is to have a good lawyer; however, a keen awareness of their copyright rights is actually powerful leverage, and that information should be disseminated through artist education.
Ms. Tignor emphasized the need to “decode” the copyright law for creators to effectively help them monetize. She explained, for example, that Chance the Rapper reported that it can be tough for creators to understand copyright laws. She posed the question: Why isn’t De La Sol on music streaming services? Copyright issues surround the creative arts, but creators often don’t “issue spot” these types of problems as copyright issues. That needs to change. Lawyers are sometimes asleep to the creator side of copyright issues, but the creator perspective is critical, and we must involve all communities in shaping and fostering understanding of the copyright laws. Additionally, in this digital age, we are removing gate keepers who have historically judged what creative works should be disseminated. Now, anyone can easily disseminate their works. But that type of dissemination requires that creators be educated on how to protect their work so that it does not get exploited by another person in bad faith.
Professor Brauneis briefly explained a study he conducted on 35 years of copyright registrations to track social trends. Broadly summarized, he found that certain racial groups had a substantially lower amount of copyright registrations as compared to the copyrightable works those groups created. Our copyright laws need to be accessible to all members of society, the CASE Act is a good example of how we can improve the accessibility of copyright protection. Additionally, copyright lawyers and policy makers need to understand the applicability of trademark protection. If a creator presents, say a logo that is not copyrightable, to a copyright lawyer, that lawyer should have the knowledge to steer them in the direction of trademark protection in case their interests could not be served by copyright, or that their interests could be better served by trademark protections.
The copyright engine is a critical tenant of our free society, and all creators need to be aboard the train.