www .press .umich .edu michigan ......Parodies of Ownership...... DIGITALCULTUREBOOKS is an imprint of the University of Michigan Press and the Scholarly Publishing Office of the University of Michigan Library dedicated to publishing innovative and accessible work exploring new media and its impact on society, culture, and scholarly communication. Parodies of Ownership ...... ...... Hip-Hop Aesthetics and Intellectual Property Law Richard L. Schur The University of Michigan Press AND The University of Michigan Library ANN ARBOR Copyright © by Richard L. Schur 2009 Some rights reserved This work is licensed under the Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 United States License. To view a copy of this license, visit http://creativecommons.org/licenses/by-nc-nd/3.0/ or send a letter to Creative Commons, 171 Second Street, Suite 300, San Francisco, California, 94105, USA. Published in the United States of America by The University of Michigan Press and The University of Michigan Library Manufactured in the United States of America cPrinted on acid-free paper 2012 2011 2010 2009 4 3 2 1 A CIP catalog record for this book is available from the British Library. Library of Congress Cataloging-in-Publication Data Schur, Richard L. Parodies of ownership : hip-hop aesthetics and intellectual property law / Richard L. Schur. p. cm. Includes bibliographical references and index. isbn-13: 978-0-472-07060-2 (cloth : alk. paper) isbn-10: 0-472-07060-6 (cloth : alk. paper) isbn-13: 978-0-472-05060-4 (pbk. : alk. paper) isbn-10: 0-472-05060-5 (pbk. : alk. paper) 1. African Americans—Legal status, laws, etc. 2. Intellectual property—United States. 3. Hip-hop—Influence. 4. African Americans in popular culture. I. Title. kf4757.s38 2009 346.7304'82—dc22 2009004565 Portions of chapters 3 and 7 were previously published as part of “Stomping the Blues No More? Hip Hop Aesthetics and Contemporary African American literature,” in Lovalerie King and Linda Selzer’s edited collection, New Essays on the African American Novel: From Hurston and Ellison to Morrison and Whitehead(Palgrave 2008). Those sections have been reprinted here by permission. ISBN-13 978-0-472-02449-0 (electronic) Preface Through her camera, Martha Cooper captured much of the energy of the emerging hip-hop scene during the late 1970s and early 1980s. Cooper, a white photographer for the New York Post,gained entrance into graf‹ti cul- ture and was provided an opportunity to document the birth of hip-hop.1 Her photographs render the burgeoning aesthetic of early hip-hop culture, its socioeconomic context, and the youthful exuberance of the participants. Because photography is a visual medium, these pictures tend to privilege graf‹ti and break-dancing over deejays and emcees. Cooper’s Hip Hop Files shows graf‹ti artists sketching ideas on notepads, kids painting in dimly lit train yards, and trains covered with designs that require multiple cars.2She also took photographs of the Rock Steady Crew, one of the earliest and most important break-dancing groups.3Her work depicts them training, practic- ing, and ultimately performing. These shots also provide evidence of how New York City was suffering from neglect and decay even as these early hip- hop pioneers were laying the foundation for a new cultural aesthetic. Cooper documents, among other things, how property, cultural owner- ship, and materialism, in various forms, have shaped hip-hop culture. Cooper’s photography portrays graf‹ti artists acquiring paint and canvases by whatever means possible and documents the disintegration of the Bronx and other boroughs. It also depicts how young people sought to reclaim a form of ownership over their crumbling communities. In retrospect, these photographs highlight battles over public space, private property, and in- tellectual property. Although the City of New York criminalized the par- vi / preface ticipants, graf‹ti art, break-dancing, and deejays, at their best, sought to beautify a decaying urban landscape and create public spaces for post–Civil Rights era youth to enjoy the freedoms for which the Civil Rights Move- ment fought so gallantly. These early elements of hip-hop culture quickly entered both main- stream and elite cultures. Break-dancing, due to MTV’s emergence and the immense popularity of Michael Jackson, found adherents across the country and in many suburban communities. Graf‹ti art also soon merged into the New York art scene as graf‹ti writers, including Lee Quinones and Fab Five Freddy, became the subject of gallery shows during the early 1980s. Jean- Michel Basquiat, who gained as much or more celebrity in the art world than in the world of hip-hop, transformed graf‹ti into an “elite art” and soon be- came associated with Andy Warhol and other New York artists. Pre‹guring intellectual property law’s con›ict with hip-hop, his work from the early 1980s frequently included ironic usages of copyright and trademark symbols. Richard Marshall argues that “the © is Basquiat’s stamp of approval, author- ity, ownership, and originality.” He further observes that “by symbolically copyrighting his SAMO sayings, Basquiat was not just identifying them as his own, but sarcastically commenting on the obsession with legitimacy, ownership, and authorship, even of his often cryptic, subversive, and anti- ownership phrases.”4Long before sampling became the subject of copyright disputes, hip-hop aesthetes, like Basquiat, examined who “owned” American culture and how the distribution of property and putatively color-blind property law doctrines operated to produce racial inequalities. Hip-hop would soon expand beyond New York and the United States. Although it has relatively quickly become a key element of youth culture worldwide and a form of mass or corporate culture, its initial concerns with ownership, property, and materialism remain integral elements of hip-hop. Hip-hop culture continues to provide a running dialogue, albeit sometimes confusing, contradictory, and highly metaphorical, about the material con- ditions of African American life and the relationship of Black America to American society and culture. The term hip-hop aesthetics denotes how these issues shape the content and form of contemporary African American cultural texts. My examination of hip-hop aesthetics seeks to explain the relationships among post–Civil Rights era art, literature, and music and view them as interrelated phenomena. By privileging artistic and literary texts in my account, I hope to transcend the debates about hip-hop lyrics, especially their violence and sexism, and focus on the underlying aesthetic strategies that shape their production. Preface / vii Another purpose of this book is to try to make some sense of the con- fused debate about property, property rights, and materialism in the post–Civil Rights era. Law, economics, cultural studies, and the arts all lay claim to these words, and no one book could synthesize all these usages. Scholars have most frequently viewed this con›ict as pitting hip-hop mu- sic, especially with its reliance on sampling, against copyright law’s under- standing of fair use. In part because this is well-worn territory, and because I thought this narrow focus has unintentionally omitted some key elements of the story, I have broadened the con›ict to examine a wider range of vi- sual and textual production and to provide an occasion to speculate in a more philosophical tone (as opposed to a doctrinal one) about the purposes and effects of intellectual property law. As I hope this book makes clear throughout, intellectual property law is not the sole or primary in›uence shaping contemporary African American cultural production. Rather, it has become one of the key contemporary battlegrounds for a wide range of social, cultural, economic, and political questions. In its effort to synthesize the vibrant conversations around intellectual property5and hip-hop aesthetics,6this book, engaging in a thought exper- iment of sorts, asks what insights could be gleaned if we viewed hip-hop aesthetics and African American cultural history, more generally, through the lens of intellectual property law (with occasional slippages into prop- erty law) and if we imagined what intellectual property law might look like if it tried to use copyright and trademark regulations to create a more just circulation of racialized texts. Obviously, these questions are arti‹cial ones, because neither legal nor cultural texts can be so neatly isolated. The “real world” is in‹nitely more complex. That being fully admitted, this thought experiment helps sheds light on how the mind-sets or worldviews pro- moted by hip-hop and intellectual property law con›ict at a conceptual or theoretical level and further the contemporary racial divide. To examine this interface between hip-hop aesthetics and intellectual property law, I rely heavily on critical race theory and Latino/a critical the- ory.7These models have helped me imagine how a color-blind area of law, intellectual property law, might be transformed into a discursive space where race-conscious remedies might be developed and a more just popu- lar culture nurtured. In a nutshell, the overall structure of this book follows what I would term a critical race theory methodology, which seeks to ex- amine the historical, popular, and cultural origins of today’s debate about intellectual property and then proceeds to offer a number of case studies in which legal doctrine is applied to speci‹c texts. The conclusion then tries viii / preface to suggest how each discipline or ‹eld might be affected by this con›ict be- tween hip-hop aesthetics and intellectual property law. Because this proj- ect attempts to synthesize the work of so many scholars from numerous ‹elds, I regret that it has been impossible to recognize every scholarly con- tribution to this book without destroying the ›ow of the text and the cen- tral argument developed herein. The book begins in chapter 1 by examining the historical debate within the African American community about the role of property and material- ism in shaping a social justice agenda. The second chapter shifts to an ex- amination of African American popular culture and its relation to the de- velopment of critical race theory. I consider how Henry Louis Gates’s in›uential description of vernacular and artistic practices within the African American community relies on assumptions that run directly counter to intellectual property law’s assumptions about creativity. The third chapter draws on Anna Deavere Smith’s Twilight—Los Angeles, 1992 to map out the characteristics of hip-hop aesthetics and provide an overview of contemporary aesthetic strategies, highlighting how those strategies have resulted in legal con›ict or led to the threat of legal con›ict. Chapter 4 applies the hip-hop aesthetic to Toni Morrison’s Beloved and Adrian Piper’s Vanilla Nightmare series. Neither Morrison nor Piper is part of the hip-hop generation, but this chapter tries to show how the structure and themes of their work, especially their focus on the meaning of owner- ship, constitute a bridge between Civil Rights generation strategies for so- cial justice and hip-hop era approaches. Chapter 5 examines copyright and trademark law’s approach to fair use by engaging in a close reading of Col- son Whitehead’s John Henry Days and Michael Ray Charles’s Forever Free series. The penultimate chapter considers the possibility of social transfor- mation and what intellectual property law terms “transformative use” by exploring Alice Randall’s The Wind Done Gone and the artwork of Fred Wilson. The book concludes by suggesting possible directions for future scholarship in African American literature, African American art history, intellectual property law, critical race theory, and hip-hop studies. By examining hip-hop as an aesthetic structure that underlies a range of genres, this book can provide a fuller critique of contemporary social and cultural relations. Parodies of Ownershipultimately concludes that intellec- tual property law doctrine has contained and neutralized the critical im- pulse of hip-hop aesthetics even if contemporary African American writing and art have ›ourished. Despite attempting to transform how intellectual property law distributes ownership rights for ideas, expressions, and texts, Preface / ix courts have been unwilling to modify copyright law even when practition- ers of hip-hop aesthetics, such as Alice Randall, win their cases. The wide- spread popularity of hip-hop aesthetics has challenged but not transformed intellectual property law. Because this book regularly shifts among four academic disciplines (litera- ture, art, law, and music) that do not always share premises or methods, I must acknowledge a few of my working assumptions in writing this book: 1. While this study describes how hip-hop has in›uenced contempo- rary African American literary and artistic production, it is clear that hip- hop is not solely an African American phenomenon. At its origins, hip-hop blended multiple ethnic traditions in its aesthetic and continues to do so today, especially as its popularity in Europe, Africa, and Asia attests. How- ever, I have limited my study to hip-hop’s effect on African American art and literature in order to keep the project a manageable one and to main- tain a fairly uni‹ed focus throughout. 2. While much contemporary African American cultural production ‹ts within the hip-hop paradigm, it would be a mistake to apply the model to all people with a certain skin tone. Rather, this books identi‹es the central elements of hip-hop, translates them to a number of aesthetic realms, and demonstrates how a range of creative endeavors within African American culture share a common methodology or approach.8 Not all books by African American writers will ‹t within this paradigm, nor will every piece of art by African American artists. For example, this book does not exam- ine “street lit,” despite its recent popularity and its focus on hip-hop-re- lated content, because these books tend not to display the aesthetic strate- gies discussed herein. 3. Hip-hop’s journey through the legal system has been well-docu- mented and analyzed, especially as it relates to the “fair-use” doctrine, by numerous hip-hop and intellectual property law scholars. While this book examines the fair-use doctrine and applies it to contemporary African American cultural production, it spends most of its critical energy examin- ing the abstract or philosophical meaning of intellectual property, rather than engaging in doctrinal analysis. The doctrinal analysis of fair use’s ap- plication to hip-hop has largely been accomplished, and the most pressing issues in intellectual property law scholarship, from a lawyer’s point of view, have moved onto new terrain. Rather, this book is concerned with a different set of questions. Who “owns” the American cultural imagination and possesses the ability to rework and reconstruct it? What kinds of own-