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Tonya M. Evans
NFTs as Tools of Empowerment toward Creative Justice in Web3
March 15, 2023 1:25 PM
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Tonya M. Evans
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Actor and activist Jesse Williams, who portrayed Dr. Jackson Avery on Grey's Anatomy, in his 2016 BET Awards acceptance speech, used the phrase “gentrifying our genius” to condemn the insidious process of misappropriating the artistic productions of Black creators, inventors, and innovators.

These three power-filled words exposed the atrocities of creative theft committed by those who sought to perpetuate the racist scourge of white supremacy and amplified the incalculable intrinsic value of multicultural contributions. Williams’ speech shined a bright light on the dark history of devaluating and stealing Black artistry, its systemic misappropriation and hyper monetization.

Gentrifying Our Genius

Although most creatives are inspired to create simply to express their creative spark, the Framers of the Constitution created copyright law through the lens of economic incentive theory. The reality that Black artists in the U.S. historically received less protection (or in some cases no protection) for their work severely undermines the intended economic benefits to the creator and benefit of progress to society.

Importantly, during the period of enslavement, a Black people were regarded as property and, therefore, legally incapable of creating or owning property of their own. The loss of generational wealth is incalculable. Often poor economic conditions, discriminatory practices, misappropriation, and unscrupulous representation have led to unconscionable deals that left even the most prolific and successful artists destitute and indebted, or with no attribution, compensation, or deal.

While property owners hold power in society, in an increasingly digital society the ability of historically marginalized people to create, own and monetize intellectual property is highly correlated to economic empowerment and future wealth. Scholar Margaret Jane Radin, who coined the phrase gentrification, opined that property ownership is inextricably linked to personhood. Under Roman law, “persona” meant rights holder. Today, we understand personhood as being fully human, not merely 3/5ths.

Leveling the Playing Field

A decentralized autonomous termination right could level the negotiating playing field, neutralize the impact of predatory and discriminatory practices, remove rent-seeking gatekeepers, and give Black artists a true second bite at the proverbial apple. In an automated, decentralized, and de-gentrified system, these artists can finally achieve true entrepreneurial and economic power by successfully leveraging their rights early in a creative work’s life cycle and then confidently reclaiming copyright decades later once the work has had a sufficient opportunity to prove its value and worth. Aspirational, but attainable via decentralized autonomous copyright termination.

Isn’t copyright law neutral? The wildly disparate experiences of creators based on race suggests it’s not. Southwestern Law School Professor of Law Kevin J. Greene’s research chronicling the history of Black music in America, exposed significant inequality of protection in ‘race neutral’ copyright law. Rapid technological advancements to copy, adapt and distribute creativity, increase possible harms exponentially in a web3 world.

Owners of copyrighted works created since 1978, were first empowered to begin terminating transfers of those works in 2013. In exchange, an artist’s rights to copyrighted works would be forever subject to the control of the original transferee. The transfer termination right is a powerful inalienable, nonwaivable right held by all copyright creators to terminate any lifetime transfer of copyright decades after transfer. It’s especially powerful for Black artists who have historically been forced or tricked into parting with all dominion over their creativity or were unaware of their rights and did not fully understand the potential value of their creations.

Victor Willis, an original member of the Village People, and songwriter of the evergreen sing-along hit Y.M.C.A., is the first artist of any race to successfully terminate the transfer of a post-1977 copyrighted musical composition under section 203 of the 1976 Copyright Act. He may have been the first, but since 2013 artists across the entertainment industry have served transfer termination notices that were thought to be irrevocable and perpetual. The list of successful artists includes the late Prince, and in 2021 R&B songstress Anita Baker, tweeted that all of her ‘children’ were coming home after a battle with her record label. Artists are successfully terminating exclusive licenses once considered irrevocable and perpetual.

These savvy stars avoided the devastating financial, emotional, psychological, and generational consequences of gentrified genius that Williams referenced. These business titans exercised their termination power in the raised fist manner of the Black Power movement of the 1960s. They achieved what so many marginalized creatives could not. By reclaiming control of their creativity, they reclaimed the economic power of property ownership.

Decentralizing for Dollars

Copyright laws are notoriously complex, and transfer termination rules are no exception. Copyright transfer termination is not automatic. Reclaiming copyright necessitates action, a series of hoop-jumping that requires owners to follow precise steps. It’s use it or lose it. And, it’s complicated. Only the most well-resourced, well-represented and savvy creatives will have the wherewithal to successfully navigate the notice and termination rules to reclaim their copyrights. Thanks to lobbying efforts by copyright-intensive industries, Congress declined to make the termination provision automatic. Once again, creatives get screwed by the gatekeepers of the convoluted, centralized and siloed system of copyright ownership.

Although an author cannot waive the termination right, not surprisingly, that right can be forfeited if not executed properly. Smart contracts and tokenized rights could reduce friction in the process significantly and shift power into the hands of the rightful owners. When artists succeed, they’re free to exploit their copyrights during their lifetimes and transfer those rights upon death. Testamentary transfers are integral to a creative’s ability to create generational wealth and essential for Black creatives, in particular, to eradicate and overcome the racial income and wealth gap.

On-Chain Protections

Blockchains, smart contracts, and non-fungible token standards can play a significant role in automating protections to ensure that all artists have actual—not theoretical—rights, especially disenfranchised creatives victimized first by powerful industry intermediaries, and then by a legal process created by the same industry insiders.

Although blockchain’s first use case was to secure and record encrypted peer-to-peer Bitcoin transactions and balances, decentralization is particularly beneficial for verifying and securing data in copyright-intensive industries.

Smart contract code can automate contract performance and enforcement and replace manual copyright transfer termination processes to remove artificially formal barriers to the full enjoyment and commercial exploitation of a copyrighted work. To de-gentrify Black genius, it’s critically important to leverage decentralized and automated algorithmic processes for unbridled creativity.

As unique, real-world assets, copyrights that are “tokenized” can be managed and exploited as an NFTs – with provable ownership and scarcity. Creatives could realize increased opportunities for liquidity (as unique assets tends to be more illiquid) and access to global markets. In light of the historical imbalance of copyright ownership and monetization noted herein, these nascent technologies present new opportunities to level the playing field for all artists.

This original article by Prof. Tonya Evans can be found here.

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