Parodies of Ownership: Hip-Hop Aesthetics and Intellectual Property Law by Schur Richard L

Author:Schur, Richard L.
Language: eng
Format: epub
Publisher: The University of Michigan Press and The University of Michigan Library
Published: 2018-05-15T00:00:00+00:00

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 Page 120 →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, Page 121 →or arbitrary and fanciful enough to be properly considered a trademark.

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