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Law in the Internet Society
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Combatting the Whitewashing of Black Art with Stronger Property Rights-- By RickeyOrr - REVISED ESSAY Throughout time, Black artists have constantly had their work whitewashed and their contributions to art erased. In March 2024, Beyoncé released her album “Cowboy Carter” highlighting the Black pioneers of country music and the genre’s roots in Black folk music and Black western or cowboy music. Unfortunately, this constant erasure of Black art and contributions to popular American culture continues to today. Therefore, stronger property rights in art are necessary to prevent the ongoing appropriation of Black art by denying Black creators of recognition for their artistic achievements and crediting white influencers and celebrities instead. Choreography Black dancers on TikTok? have not received credit for the dances they choreographed. These dances to songs including Lottery by K Camp, Savage by Megan Thee Stallion and Up by Cardi B have gone on to become some of the biggest dances on TikTok. Due to a lack of credit and recognition for these Black dancers’ achievements and originality, the white influencers who popularized their dancers have been afforded many opportunities. Charli D’Amelio, one of the biggest TikTok? influencers, currently has 155.7 million followers. In 2020, Charli, Dixie D’Amelio and Addison Rae Easterling performed multiple TikTok dances created by Black dancers during the National Basketball Association’s (NBA) All-Star Game. The only Black dancer invited to perform was Jalaiah Harmon following a last minute invitation and a New York Times profile crediting her as the lost creator of the Renegade dance to Lottery by K Camp. In March 2021, another TikTok? influencer, Addison Rae Easterling, performed multiple dances on The Tonight Show Starring Jimmy Fallon. This performance received subsequent backlash as none of the Black dancers who created the dances Addison performed were invited to the show. Dances on TikTok? are frequently copied and remade without any credit for those who created these dances. This leaves Black dancers who are driving the creativity and artistic expression on the app without any benefits for their work. Their opportunities are going to the white influencers who popularize their dances. Black dancers lose potential monetary income as well, including licensing their dances to video games and music videos, and the ability to sign representation contracts with agents and managers. Fashion Aesthetics Throughout the 1990s and 2000s, Black designers and musicians drove popular fashion. Y2K was a fashion aesthetic that began during the mid-1990s and lasted until the early 2000s. Y2K is named after the Y2K bug and is inspired by futurism, space exploration and technological advancement. The aesthetic was pioneered by Black musicians Aaliyah, Missy Elliot, and TLC. McBling was a fashion aesthetic that lasted from the early 2000s until the late 2000s. McBling? is inspired by consumerism, excess and celebrity culture. The aesthetic was pioneered by Black designers Dapper Dan and Kimora Lee Simons and Black musicians Missy Elliot, Eve and LL Cool J. Beginning in the early 2020s, users on TikTok became fascinated with the Y2K and McBling aesthetics. This fascination grew so much that both aesthetics began influencing 2020s fashion. However, the McBling? aesthetic was incorrectly referred to as Y2K? , and Paris Hilton was given credit for pioneering this aesthetic by many users. Once again, the Black visionaries who created a unique art form have been erased. Moreover, TikTok? has no content warning or fact checking capability to prevent this misinformation from spreading. The original Y2K? aesthetic, focused on space exploration and technological advancement was completely overshadowed due to its conflation with the McBling? aesthetic. The purpose behind the Y2K? aesthetic was lost as well. It is inherently Afrofuturistic as it depicts Black people existing and thriving in a futuristic utopia, instead of in pain or subjected to discrimination. It also combatted the numerous space themed narratives that have excluded Black people as a whole from their storylines and imagery. Legal Solutions There are numerous legal solutions for this recurring problem. The Black dancers should copyright their choreography as soon as they create it or post it to TikTok? . Any professional uses of their choreography where people receive compensation including a Tonight Show or NBA halftime performance would be an unlawful use or infringement of their choreography. The only limitation is the extent to which a perpetrator could claim fair use by performing the choreography in a different context or changing a couple moves. The fashion designers should also copyright their work if it includes sketches they created, or any colors used for specific purposes. An example is the red underneath Christian Louboutin heels. However, Black musicians will have a harder time protecting their contributions to fashion. Unless these musicians register one of their looks from a music video or performance for copyright protection or sketch it, it would not be protected under copyright law. Nevertheless, copyright law has historically denied Black artists of credit. Numerous Black blues musicians were denied authorship, because their creations were deemed to be usable by everyone. Similarly, the tradition of “sampling” in the Black hip-hop community does not constitute a fair use, despite how different a new song is from the original it samples. Increasing property rights in art could have the opposite effect by continuing to strip Black artists of credit instead of protecting them from infringers. However, in 2015, Marvin Gaye’s estate won a copyright infringement suit against Robin Thicke and Pharrell Williams due to a new, broader definition of copying. Previously, courts examined whether two songs had similar melodies. Whereas, this court examined melody, harmonies and rhythm. This broader definition benefitted Marvin Gaye’s estate protecting his art from misappropriation. Even though Black musicians helped pioneer major fashion aesthetics including Y2K? and McBling? , the best way to ensure they receive credit for their contribution is to increase their property rights in their art. Specifically, a new doctrine that safeguards artistic contributions for overarching aesthetics in the same way that copyright law does for individual works of art. This would prevent future appropriations of Black art by returning the credit for choreography and the Y2K? and McBling? aesthetics to the Black artists who originated them.You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. To restrict access to your paper simply delete the "#" character on the next two lines:
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