This affirmative presents a case for strengthening intellectual property protections for Black creators in the United States, specifically by incorporating moral rights into copyright law. The argument makes two main claims:
- Current copyright law enables widespread appropriation and exploitation of Black musical creativity and innovation.
The argument contends that the existing copyright regime is structurally incompatible with Black musical traditions and creative processes. It cites several issues:
- The requirement to fix works in a “tangible medium” disadvantages oral and improvisational traditions common in Black music.
- The low originality threshold allows imitation that doesn’t rise to the level of copying, enabling white artists to profit from Black innovation.
- Work-for-hire contracts have historically divested Black artists of ownership and compensation for their creations.
- The idea/expression dichotomy prevents protection of musical styles and genres pioneered by Black artists.
As a result, generations of Black musicians have been denied proper credit, control, and compensation for their artistic contributions. The argument frames this as a form of systemic exploitation rooted in America’s history of racism.
- Incorporating moral rights, particularly the right of attribution, into copyright law would help rectify these issues.
The argument advocates adopting elements of European-style moral rights law, which recognizes artistic works as extensions of the creator’s personality. Key moral rights include:
- The right of attribution – to be recognized as the author of a work
- The right of integrity – to prevent distortion or modification of one’s work
Codifying these rights would provide Black artists stronger legal standing to assert ownership and control over their creations. It would help prevent appropriation and ensure proper credit, even when economic rights have been transferred.
The argument contends this change is necessary because current alternatives like trademark law (Section 43(a)) are inadequate. Trademark protections focus on consumer confusion rather than artists’ interests and have many limitations.
Overall, the case frames adopting moral rights as a way to make copyright law more inclusive of Black musical traditions and to rectify historical injustices in how Black creativity has been treated. It presents this as an important step for protecting the integrity and economic potential of Black artists’ work.