Black Artists Have Waited Long Enough for IP Reparations

There has been significant discussion about the role of federal and state reparations for Black Americans to account for the insidious legacy of slavery and discrimination from the Jim Crow era. That California’s first-in-the-nation task force to examine methods of disseminating reparations and H.R. 40, a bill to establish a commission to study and develop reparation proposals, are tangible outcomes of this discussion.

In the California task force’s interim report, the task force specifically notes that they will examine the deprivation of intellectual property and economic rights for Black Americans. This commitment coincides with the music industry’s own reckoning of its failure to credit Black artists and creatives.

The task force’s findings, and any eventual legislation, must ensure that artists of color are properly compensated for their creations, and that moving forward policies establish a fair playing ground in music. 

Federal action is needed, not only to ensure fairness in compensation for Black artistry, but also to correct the harms of the past. There are countless tales of the industry’s failure to credit Black artists for their contributions to music history.

Many are familiar with the lack of credit given to Big Mama Thornton for the recording of the iconic, “Hound Dog.” Neither Big Mama Thornton, nor the hit’s writers, Mike Stoller and Jerry Lieber, received fair royalty payments for the song—and the record’s cultural significance is largely allotted to Elvis Presley. A historical lack of protection under Copyright Law for Black creators leaves artists vulnerable to this narrative. 

Today, copyright discrimination against Black artists also culminates in fewer royalty payouts in comparison to their white peers. In 2020, after finding “significant” racial disparities in royalty payouts across its recording contracts, BMG Rights Management committed to closing the gap “across all of its catalogs.” This ad hoc approach, however, can’t rectify decades-long, systemic discrimination. 

The federal government needs to implement reforms that address past discrimination and eliminate future inequities in the creative industries—specifically through restructuring intellectual property laws. We’ve already seen forms of this legislation from 2019, when House and Senate lawmakers introduced the IDEA Act (H.R. 4075, S. 2281), requiring the national patent office to collect demographic information, including race and gender, from patent applicants on a voluntary basis. The agency is also required to make this data public. This bill has seen no further movement since 2019.

The IDEA Act should not only be introduced again, but it should also include trademark and copyright applications to protect BIPOC artists and inventors who are currently unprotected. This type of legislation is especially important because there is currently no reliable data on the actual number and proportion of Black intellectual property ownership. However, anecdotal research suggests that the rates are extremely low. Any long-term, successful solution will be multifaceted, but all solutions will start with assessing reliable data.

One way of assessing this data while also providing direct reparations to those impacted by unfair copyright laws is by auditing all music registered to the Copyright Office between the 1920s and 1940s. This period, notoriously known in music as the “race records” era, sowed the seeds of the modern disenfranchisement of Black artists.

During that time, those producing hit records were barred from receiving copyright ownership of their creations, resulting in the loss of valuable IP for hundreds of Black songwriters and producers. Because of the countless miscredited works currently protected by the Copyright Office, any reparations for Black artists today will include a full audit of the office’s past registrations. Any unpaid compensation should then be given to the descendants of those creators who were undercut in the business they helped spur in the mid-20th century.  

Federal elected officials and advocates alike should double down on pushing for H.R. 40, the Commission to Study and Develop Reparation Proposals for African Americans Act. If implemented, the Commission will be tasked with examining slavery and discrimination in the colonies and the US from 1619 to the present and recommending appropriate remedies. The commission would also identify the role of the federal and state governments in supporting the institution of slavery, forms of discrimination in the public and private sectors against freed enslaved people and their descendants, and lingering effects of slavery on living Black Americans. 

As described in the California Reparations Task Force’s interim report, deprivation of intellectual property and economic rights from economic property will be a huge component of this government-funded study. The study of the generational impacts of slavery is also integral to the lens through which many Black and other people of color have traditionally viewed artistic creation: that cultural production necessarily draws upon previous creative accomplishments.

This idea underscores the financial and mental toll on Black and other creators of color when they are not credited for their significant contributions to music and culture. It is also a paradigm that directly conflicts with current IP law and its individualistic construction. Fair reparations for Black artists must recognize how generations have influenced the music we enjoy today and compensate them accordingly. 

Legislation is only one action needed to dismantle the legacy of Black cultural theft in America. A paradigm shift is also deeply needed in music and entertainment—one where Black creators are recognized and compensated for their contributions to the art we enjoy every day.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Almuhtada Smith is the principal attorney at ARS Counsel, which he founded in 2018. He handles complex transactional matters, providing counsel to start-up enterprises, entertainment professionals, venture-backed companies, and family-owned businesses. He spent the first decade of his career at large law firms, including Jenner & Block.

Write for Us: Author Guidelines