On October 8, the Fordham Intellectual Property, Media & Entertainment Law Journal (IPLJ) hosted its 29th annual symposium titled “IP Interrupted: Diverse Voices in Intellectual Property.” Speakers presented on a host of subjects that dealt with the unique ways in which intellectual property impacts marginalized groups.
“For me, being an African American woman, I realized that people who look like me aren’t often in the forefront of the intellectual property space,” said Gina Boone ’22, symposium editor for the IPLJ. “And so my idea in coming up with the theme for this year’s symposium was to amplify diverse voices on very important intellectual property issues.”
Appropriation and Lack of Representation as Legal Issues
The event began with opening remarks from Dean Matthew Diller and then a panel discussion on digital rights, titled “Offline: The Intersection Between Data and Cyber Civil Rights.”
Next was a panel titled “Copycat Culture: The Copying of BIPOC Creations and Fashion Law,” moderated by Fordham Fashion Law Institute Founder and Director Susan Scafidi, which centered around questions of the legal aspects of cultural appropriation in fashion.
Marcela Bolland González, partner at Uhthoff, Gómez Vega & Uhthoff based in Mexico, spoke about recent changes to her country’s copyright law, which aims to protect the art and design of Indigenous communities from appropriation. “Now if you want to use a cultural expression, art, art design, or any other elements from Indigenous communities, you need to have the corresponding authorization from the representative of that community,” González said.
Another law would require that any agreements made between Indigenous communities and private companies would need to have proportionate compensation—for example, a luxury brand could not sell expensive clothing that incorporates traditional Indigenous designs for thousands of dollars while only contributing one dollar to the source community.
Kenya Wiley, who serves as policy counsel for the Fashion Innovation Alliance and is a professor at Georgetown University and the Fashion Law Institute at Fordham Law, also discussed the question of compensation and reparations as well as the long history of fashion brands appropriating and profiting from styles found within the Black community. She described recent examples like door knocker earrings sold at Urban Outfitters and “sagging” style pants sold by Balenciaga, which many have decried as racist.
Representation and diversity in corporate environments are tools that can help prevent instances of appropriation, according to Wiley. “In order for brands to get past these cultural missteps, they must make sure that they have representation from diverse backgrounds,” she said. “And that they aren’t just hired, but that they are being included in the discussion and that their voices are being heard.”
When it comes to intellectual property, lack of representation is another issue found on both the legal and corporate sides. Theresa Conduah ’05, partner at Haynes & Boone LLP, who delivered the symposium’s keynote address, discussed the lack of representation in the field of IP law. Conduah cited data from a 2019 American Intellectual Property Law Association report, which found that 86 percent of IP lawyers were white and that a significant majority were male. Only 1.9 percent of IP lawyers were Latino, 1.7 percent were Black, and less than one percent were Indigenous, the report stated.
“I think this data really is, frankly, a stark number for us to see in terms of the growth and the work that has to be done in order for us to achieve full inclusion in the technology and IP space,” Conduah said.
IP Issues in the Music Industry
Another panel, titled “Color of Music: A Discussion on Race, Music, and Intellectual Property Rights,” discussed how intellectual property rights impact marginalized people in the music industry.
Danielle Price, senior vice president of business and legal affairs at 10K Projects, spoke about the need for minority artists to find quality legal representation early on in their careers.
Price, who previously worked at Warner Music Group and later represented artists like Nicki Minaj and Megan Thee Stallion, said she has observed bias when it comes to dealmaking. “I believe that it’s due to inherent racial bias that Black artists were often getting deals that maybe weren’t valued in the same way as the deals that were being given to white musicians,” said Price. “When you think about what is unique to Black music in particular and what it brings to the industry, I think that Black artists are getting the short end of the stick.”
Kevin J. Greene, John J. Schumacher Chair and Professor of Law at Southwestern Law School and an early advocate for marginalized people in IP law, discussed how reforms to current laws could help protect minority artists.
Greene spoke about the need for the Copyright Office to change its rules regarding choreography—which is normally not copyrightable—so that dances created by primarily young Black creators can be protected, like in the case of the popular video game Fortnite plagiarizing dance moves from Black artists.
“It is a travesty that these massive corporations are taking these Black teenagers’ work [and]they feel no obligation to give anything [back],” Greene said. “There’s no reason for that rule. It’s a racist rule.”
“What Black people do, whether it’s the Charleston or the Boogaloo or the newest dances being done, isn’t protected,” he continued. “We can make some changes, right there.”
Similar issues have existed in the Native American community, said Trevor Reed, associate professor of law at Sandra Day O’Connor College of Law at Arizona State University, while discussing tribal IP laws in the United States. He gave the example of ethnomusicologist Laura Bolton who traveled to Native American communities in the middle of the 20th century and made hundreds of recordings of sacred ceremonial songs without consulting local leaders. Bolton secured a record deal for her recordings and released several albums, with the total value of her collection valued at millions of dollars today.
Despite meticulously negotiating several record deals, Bolton did not inform or include the musical performers themselves in negotiations. “There’s no record of her ever paying royalties to any of her performers or their families,” Reed explained. “There’s no discussion nor any arrangement she may have made with informants to reproduce, distribute, or publish their work.
Still, some progress has been made with new policies being implemented by archivists that respect tribal IP laws. “There are organizations today—like the First Archivist Circle, the Society for American Archivists, [and]the American College Research Libraries Association—who have adopted their own internal policies that require consultation and abiding by tribal IP laws,” Reed said. “So we’re seeing the institutions themselves are starting to take action. And, in addition to Indigenous political pressure, we’re starting to see some momentum on this front…but there’s so much more work to do in the copyright space.”
Summaries of the symposium speakers’ comments will be published in IPLJ‘s second book of Volume XXXII and a recording of the event will be available on the IPLJ‘s website.