The Chapman Law Review is proud to publish Professor Kevin J. Greene’s article: Goodbye Copyright? The Rise of Trademark and Rights of Publicity in the Hip-Hop Music Industry. Below, you will find an excerpt from the article.

Forthcoming: Goodbye Copyright? The Rise of Trademark and Rights of Publicity in the Hip-Hop Music Industry

By Kevin J. Greene

Introduction

My scholarship posits that copyright doctrine, music industry standards, and practices and adjudication in the courts have acted as a fulcrum of wealth-extraction out of the creative Black community. Legal doctrines and industry practices serve to divert the bulk of the value of works by Black artists into the coffers of non-creators and corporate conglomerates. I have written elsewhere that copyright law, in particular, routinely treated works created by African Americans as if dedicated to the public domain that is freely appropriable by anyone. While rap music sits at the top of music charts and generates billions in revenues through other areas of the entertainment industry such as Tik-Tok, fashion, and memes originating in the Black community, the copyright revenues available to artists in the age of digital streaming have actually declined steeply from the days of the vinyl record business. Streaming revenues are led by hip-hop music and generate billions in song plays and ad revenues, but pay out fractions of pennies to artists, meaning that many millions or even billions of streams are necessary to generate wealth. The paucity of revenues generated from copyright sources has diminished the importance of copyright revenues for hip-hop artists and elevated ancillary revenue sources from branding (the domain of trademarks) and endorsements (the domain of publicity rights). Because musical artists typically own rights to their trademarks and to their name and likeness this development constitutes progress on its face. The U.S. entertainment industry is built on a model that requires artists to give up copyrights in exchange for distribution of music and motion pictures. Some might categorize this exchange as a “devil’s bargain.” However, this article contends that the rise of trademark and publicity rights portends three insights. First, the primacy of branding and endorsements in hip-hop has led to abusive trademark litigation by rappers seeking to stake claims. Abusive claims, even where trivial or absurd, must be defended, and can cast a chill on free expression and the dissemination of expressive works. Second, and perhaps even more troubling, the gold rush in branding and endorsements has exposed inequities in the trademark ownership process, where unsophisticated and unrepresented artists have lost out on trademark rights. Registration occurs against a backdrop of murky legal standards regarding who is the trademark owner of a musical group. Third, vis-à-vis copyright law and trademark law, the right of publicity emerges as a kind of safe space for artists. There is no plethora of expropriation of artist publicity rights, but rapacious contract provisions regarding name and likeness rights could pose potential problems. As trademark and right of publicity valuations continue to soar above what artists can generate in the streaming era, these problems are likely to expand, suggesting that tighter penalties should exist for abusive trademark assertions, and that the trademark ownership process needs reform to prevent expropriation against unsophisticated parties. The complexities of the trademark ownership process have facilitated lost rights for unsophisticated and unrepresented artists.