Whiteness as Intellectual Property: Some Notes Towards a History of Copyright Law’s Racial Unconscious

Editor’s note: The following is a guest essay by Kurt Newman, PhD candidate at UC Santa Barbara.

Whiteness as Intellectual Property: Some Notes Towards a History of Copyright Law’s Racial Unconscious

by Kurt Newman

As a left historian working on the history of intellectual property (IP), few recent events have been as heartening as the appearance of a special section of Jacobin magazine dedicated to the politics of copyright and patent law. Jacobin, as readers of this site surely know, has emerged in recent months as a force in new new left journalism, attracting deserved attention as a key site of a revitalized New York-based radical politics.

While IP was a big topic on the Left a few years back, attention to it has faded in recent years. I have had some worries that perhaps I have chosen to work on yesterday’s topic. The Jacobin IP forum relieves some of those anxieties, and also points to the need for further conversation.

To my mind, the best part of the Jacobin IP section is an excellent essay by the artist and critic Anne Elizabeth Moore on the often-neglected gender dimensions of IP. I urge everyone to read it—Moore is a wonderful writer and makes an ironclad case for the need to reorient discussion of IP around feminist priorities. Reading Moore’s essay led me to think about race as a missing term in the Jacobin forum. Thus, in the following section, I thought I would share some work I have done on that topic.

Highway Robbery Across The Color Line: Paul Whiteman, Intellectual Property Politics, and the African American Press in the 1920s and 1930s

The psychoanalyst Bruce Fink relates the story of a neurotic patient, coping with anxiety about sexual performance, who spent session after session complaining about his frustrations with his work on the computer programming language “UNIX.” When Fink points out to the patient the homonymic resonance of “UNIX” with “eunuchs,” the patient finds himself feeling instantly cured. The lesson of this story is surely this: when in doubt, look for a homonym.

Thus, if we are searching out the racial politics of American popular music and intellectual property law, we could do worse than to train our focus on the pioneering Swing Era bandleader Paul Whiteman. Whiteman—jazz’s prototypical white man–is significant for many reasons: his arrangements were important contributions to the swing language, and he famously introduced many of Gershwin’s most famous compositions to the world. Whiteman was a longstanding campaigner for intellectual property rights in musical interpretations and arrangements, and the defendant in a key copyright case, 1939’s RCA v. Whiteman. But Whiteman’s most historically important role may have been as the greatest venture capitalist in the field of “whiteness as intellectual property.”

Here, we are interested in the links between Whiteman the legal crusader and Whiteman the preeminent practitioner of interracial cultural entrepreneurialism, and in the ways he leveraged his whiteness to propertize the resources of African American musical innovators. I attend primarily to Whiteman’s self-representation and his reception by African American intellectuals, rather than Whiteman’s legal campaigns, and argue that the reach of intellectual property as an organizing paradigm extends far beyond the courtroom—that, in fact, “whitening” was coordinated with racialized conceptions of authorship, the nature of the musical text, and aesthetic value.

Progressive cultural critic Gilbert Seldes summed up Whiteman’s significance as racial mediator in a piece written for The Dial in 1923:

So far in their music, the negroes have given their response to the world with an exceptional naiveté, a directness of expression which has interested our minds as well as touched our emotions; they have shown comparatively evidence of the function of their intelligence… Nowhere is the failure of the negro to exploit his gifts more obvious than in the use he has made of the jazz orchestra; for, although nearly every negro jazz band is better than nearly every white band, no negro band has yet come up to the level of the best white ones, and the leader of the best of all, by a little joke, is called Whiteman (Gilbert Seldes, “Toujours Jazz,” The Dial, August 1923).

Langston Hughes saw things differently:

 White Man! White Man!

Let Louis Armstrong play it–

And you copyright it

And make the money

(Langston Hughes, “White Man,” The New Masses, December 15, 1936).

Hughes refined this acerbic take in an essay written twenty years later, in response to rock and roll’s replay of Swing Era intellectual property politics:

 It is nothing new for American whites to take American Negro songs, words, and styles, and appropriate them for their own. This began more than a hundred years ago… Almost as fast as the Negro originates something new in the world of music, the whites take it and go, sometimes even claiming it as their own creation… A white band in Chicago in the early 1920s claimed to be the originators of jazz… in New York a bit later Paul Whiteman took unto himself the title of ‘The King of Jazz’… Some of the poor guys who created jazz and are still living, are on relief.

(Langston Hughes, “Highway Robbery Across the Color Line in Rhythm and Blues,” The Chicago Defender, July 2, 1955, 9).

Hughes was actually being rather kind. He might have called attention to Paul Whiteman’s 1930 film, The King of Jazz, featuring a cartoon segment wherein Whiteman travels to the “African jungle” and is crowned “King of Jazz” by the natives.

Whiteman himself occasionally acknowledged something like “whiteness as intellectual property.” He famously told the African American bandleader Fletcher Henderson (who was sometimes called the “Paul Whiteman of the Race”): “if you were white, you would make a million dollars.”

“A million dollars,” coincidentally, is the sum that white college students told social scientist Andrew Hacker that they would demand in compensation if they woke up one day to discover that they had accidentally been turned into African Americans. This anecdote, in turn, lies at the heart of Cheryl Harris’s groundbreaking article “Whiteness as Property” (Cheryl Harris, “Whiteness as Property,” Harvard Law Review, June 1993, 1-75). Harris makes a powerful case for “whiteness as property” in relation to property’s function as a “right to exclude,” looking at the evolution of “whiteness” as a precious, selectively distributed resource, from Plessy to Bakke.  Her research, bolstered by more recent work by Ira Katznelson, George Lipsitz, and David Freund, provides a powerful ground for historical inquiries into racism’s “cash value.” But how did “whiteness as property” become “whiteness as intellectual property?”

In an earlier essay here about the pragmatic innovations of Oliver Wendell Holmes, Jr. in the area of copyright jurisprudence in the early years of the twentieth century, I stressed the revolutionary character of Holmes’s insistence that the taste of every class was to be treated with respect. By 1909, the class struggle in intellectual property law had been temporarily settled, with the leveling forces of popular culture victorious over more traditional commitments to fine art.

The new currents in copyright jurisprudence shifted the terrain of struggle from conflicts over “high” and “low” to battles between large and small media corporations, and between managers and cultural workers. With the consolidation of these developments, the gendered and racialized character of intellectual property assumed new political salience. Women, who were not guaranteed the right to publish books in their own names (motivating the formation of the Lucy Stone League in the 1920s under the leadership of Ruth Hale to agitate for women’s right to publish under their own names) were among the most important cultural workers of the 1910s and 1920s. Lacking many of the legal protections of literary paternity, women cultural workers were seen by Hollywood studio heads, mass-market publishers, and stage producers as uniquely good investments.

As with gender politics, the racial politics of intellectual property law largely took shape around structural advantages that allowed white male cultural entrepreneurs to claim credit for, and thus propertize and authorize, the creative work of less socially powerful others.

Whiteman was perhaps the most vigorous speculator in this area. Beginning with a chance encounter with jazz music in the Bay Area during the World War I era, Whiteman crafted a self-identity as an “interpretive musician”—a shaper and molder of raw materials (typically, materials that were “raw” to the extent that they were African American), the creative processing of which (or “sweetening”) added up to a Lockean mixture of labor and nature meriting authorial status.

Whiteman’s famous Aeolian Hall concert of 1924 seems to have represented a turning point in the epistemological maturation of “whiteness as intellectual property.” By conscious design, Whiteman arranged the program around “smooth”/”rough” and “civilized”/”wild” distinctions that remain central to popular music’s aesthetic self-understanding. Famous for premiering Gershwin’s “Rhapsody in Blue,” the Aeolian Hall concert was a self-conscious attempt to “whiten” African American music, or (in language suggesting that passing from black to white is a thoroughly gendered business), an effort to “make a lady out of jazz.” Whiteman’s orchestra began with a performance of “Livery Stable Blues,” adapted from a 1917 recording by the Original Dixieland Jazz Band. The ODJB was a white group led by clarinetist Nick LaRocca, who later assumed the mantle of jazz’s inventor.  In his 1924 memoir Jazz, Whiteman borrowed a page from LaRocca’s playbook, coming close to claiming paternity over all of jazz music.

Like the ODJB, Whiteman’s Aeolian Hall performance featured a variety of raucous imitations of barnyard sounds—playing on racist associations of “blackness” and “animality.” Whiteman consciously chose “Livery Stable Blues” as the concert opener in order to display, over the course of the rest of the performance, the subsequent “improvements” in jazz scoring. Later, Whiteman performed the popular song, “Whispering” in two versions—“legitimate scoring vs. jazzing”—so as to display a “melodic, harmonious, modern theme jazzed into a hideous nightmare.” The evening was structured to validate white claims to having “improved” jazz, and thus like John Locke’s agrarian capitalist claiming ownership of “turf his horse had cut,” to assert legal ownership of the music.

Beyond simple avarice, would-be musical “improvers” like Whiteman were motivated by changing historical conditions in the decades after World War I. Beginning with the nineteenth century minstrel show, and vaudeville’s array of racialized buffoonery, American entertainment culture had long been defined by a central tension between original and forgery, repetition and difference. As Cedric Robinson and Clyde Woods have argued, at the heart of this regime of racial representation lurked a central contention: that the victim enjoys his or her victimization. In such representations, the African American grotesque takes pleasure in his humiliation and degradation (as does the Irish gorilla, the Jewish shylock, and the idiot hayseed). No one enjoys racism, according to the logic of such entertainments, as much as its victims.

This regime of racial representation (connected, in complex ways, with the railroad corporations, Northern banks, the Southern prison-industrial complex, and the cotton economy) required constant renewal and refreshment, as well as regular explosions of spectacular violence. What this regime could not tolerate—what would be entirely fatal to the entire operation—was the free expression of the complex and fully human personhood of African Americans. Thus, when musicians like Whiteman worked to maintain their monopoly on the legitimate means of translating African American music to white America, via the mechanisms of copyright law, they were functioning within a well-established pattern of mediating the aesthetic expression of African Americans (which often meant, in practical terms, censoring or distorting its content) in order to preserve minstrelsy’s empire.

As the gramophone, radio, and automobile led to increased opportunities for African American cultural workers to present their own aesthetic projects across the country, without the intermediating brokerage of white “translators,” this regime of racial representation was imperiled. This created a real crisis for both aggressive defenders of popular culture’s racism and those who, like Whiteman, saw themselves as genuinely committed to aesthetic appropriation as evidence of interracial friendship (however curious such commitments were in the face of Whiteman’s tendency to feature blackface minstrelsy sequences in his concerts throughout the 1920s and 1930s). Musicians like Whiteman, then, were fighting for the preservation of “whiteness as intellectual property” on two fronts: seeking to preserve their roles as folkloric or anthropological mediators, and also to preserve their roles as commercial “co-authors.”

What is perhaps most intriguing about Whiteman’s cultural prospecting is that he made no effort to obscure his promiscuous borrowing. Whiteman’s remark to Fletcher Henderson was meant as an expression of jocularity, not cruelty. Whiteman regularly went to see the Duke Ellington band play in Harlem in the 1920s and 1930s. Thomas DeLong writes that Whiteman used to urge his collaborator Ferde Grofe to “make notes of what Ellington’s outfit was playing, but Grofe had little or no success at capturing its distinctive sound and syncopation.” Whiteman and Grofe admitted that due to the timbral complexity of Ellington’s music, they couldn’t steal “even two bars of the music.”  But, by implication, had they been able to capture the sounds on paper, they would have felt no compunction about taking them.

In this light, it is interesting to read the Chicago Defender’s coverage of Paul Whiteman in the 1920s and 1930s. A certain internalization of Whiteman’s claim to have redeemed jazz seems to have taken hold among some of the African American intelligentsia. For example, an opinion piece by Dave Peyton from 1929 celebrates Whiteman as it launches a complaint against the segregation and ghettoization of African American music by record labels. Peyton argues that African American musicians had been forced by record companies to play “discordant noises,” as opposed to the “legitimate instrumentation” and “wholesome music” of white jazz musicians like Paul Whiteman. For Peyton, Whiteman’s “refinements” represented not a whitewashing of jazz, but a purification of African American music traditions. The problem was that white-owned record labels would not allow African American bands to emulate Whiteman, encouraging instead musical “bad habits.”

In December 1936, the Defender ran a story by the white journalist Harry Martin illustrating the reach of “whiteness as intellectual property” as an organizing ideology. Martin celebrates Whiteman’s participation in a tribute to African American blues pioneer W.C. Handy at Memphis, Tennessee’s “Cotton Carnival.” Whiteman headlined the “floral ball for the white folk.” It was at this event, according to Martin, that “Handy’s star attained its highest ascendancy.”  Handy had been invited to put in an appearance at the whites-only ball, an invitation that was highly unusual in the context of Jim Crow Memphis. “The idea of a Negro appearing as a guest at a dance in a Southern city was unheard-of,” but Memphis elites felt that making an exception for Handy would be a “fitting gesture toward a man who had brought honor upon the city,” and with “considerable nervousness” issued the invitation.

Martin paints the scene of Handy’s entry on stage as thick with racial tension, mediated only by the comforting presence of Paul Whiteman:

 Few persons at that vast ball realized what was going on when this elderly Negro, perfectly groomed, slightly stooped, his bald head gleaming with the footlight reflection, shuffled slowly from the wings of the stage on which the Whiteman orchestra was playing… Timidly, half apologetically, Handy moved toward the center of the stage. Silence fell on the throng standing on the floor in couples awaiting the next dance number. The hush became ominous. Who was this interloper from another race? What was he doing on the stage? A murmur began to run through the crowd. Then suddenly Paul Whiteman crossed to Handy’s side to take him by the arm and lead him to the microphone…The cheers and applause that followed were deafening. From 5000 white throats went up a roar as 10,000 white hands beat together in recognition of a talented Negro. That was Handy’s greatest monument. He will never have another like it. He had come home and his white folks had taken him to their bosom. The whole thing lasted not more than five minutes. Yet in that short interval had occurred one of the most remarkable phenomena in the history of relations between two races.

Against these celebrations of the healing powers of “whiteness as intellectual property,” African American artists and intellectuals developed a critical and resistant alternative throughout the twentieth century. Film critic Chappy Gardner articulated an early version of this critique in a 1933 editorial in the Defender: “Writer Says They Ape Our Musicians, Dancers, Actors, and Then Steal Our Songs; Hollywood Creates Nothing, but Copies all Harlem Offers.”

Gardner begins with a jab at Whiteman: “Whites are claiming originality in Negro jazz, song, and music… If we don’t watch our step someone might actually believe these bedtime stories.” Gardner continues with the tale of a “certain white boy” who claimed he wrote “Stormy Weather.” Outraged, Gardner tracked down the real writer, “Lukie” Johnson, and agitated successfully to collect royalties for the “song stolen by the white boy.”

“Negroes lead the world in entertainment,” Gardner concludes. “The kind of music so popular today was created by us. One can trace jazz from the mourner’s bench crowd standing about you clapping hands and keeping syncopated time with their feet.” Whiteman, for Gardner, is the worst of all offenders: “Whiteman says he is king of jazz. Maybe he means he plays or imitates our real jazz masters quite well. But until he writes a ‘St. Louis Blues’ like Handy we are laughing at him.”

To draw direct parallels between our historical moment and Whiteman’s is to court manifold dangers. But I think that even this brief look at Whiteman and an earlier moment of IP politics helps to shed considerable light on problems that remain current. What is apparent from this historical inquiry is that IP has long rested on racialized, as well as gendered and classed, foundations. This is a different story—no less painful, perhaps, but operating on different principles––than the more familiar tale of white theft of African American music, the agonies of Elvis and Eminem.

Perhaps less well known is the long history of contestation of “whiteness as intellectual property” within African American public culture and among segments of the African American intelligentsia. Long before Lawrence Lessig and Jaron Lanier, African American intellectuals were developing a sophisticated critique of copyright and the “ownership of ideas.” The more we learn about this legacy, the richer will be our resources for thinking about radical intellectual property politics beyond tech-libertarian platitudes about “information wanting to be free.”