Created Differences: Rhetorics of Race and Resistance in Intellectual Property Law
Vats, Anjali Sunay
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Intellectual property law, specifically that governing trademarks, copyrights, and patents, is increasingly dominated by a narrative of "theft" in which racialized thieves steal knowledge produced by white creators, disrupting global flows of information. Because of intellectual property's increasingly important relationship to race and production and ownership of knowledge, trademarks, copyrights, and patents are important cultural texts through which racial formation unfolds and racial projects are carried out. In other words, racial categories are created and formed through intellectual property discourses and policies which reflect the racialized rhetorics of the legal regime used to shape policy. Yet, erased and silenced from racialized narratives of intellectual property infringement are the global inequalities which facilitate the private ownership of knowledge in the first place. As this project demonstrates, marginalized groups have recognized the problematic articulations of intellectual property rights with racial difference, finding rhetorical and performative ways to contest the racialized narratives of infringement that continue to justify Western intellectual property regimes. This project develops rhetorical disidentification, a concept built on the work of performance and gender studies scholar Jose Esteban Muñoz, as a means of theorizing how marginalized subjects act resistively within the boundaries of intellectual property law to unmake the links between racial difference and intellectual property rights infringement. Rhetorical disidentification with intellectual property law involves simultaneously complying with and contesting legal discourses in a manner which forces the acknowledgement of otherwise invisible histories of race in defining the public domain and articulating processes of knowledge production. Through their disidentificatory acts, marginalized subjects confront racialized representations of infringement, casting white creators as thieves of indigenous knowledge and illegal occupiers of information that should be held collectively in the public domain. Rhetorically and performatively intervening to counter the racialized narratives that dominate intellectual property law is a resistive act which reconfigures understandings of trademarks, copyrights, and patents to account for histories of difference, asserts the agency of racial Others, and creates space for marginalized rhetors to speak back to legal regimes. While this project focuses on rhetorical disidentification within legal regimes related to knowledge production, the concept more broadly offers a theoretical and methodological tool for rhetoricians to study resistance by marginalized subjects that may not at first glance appear as resistance. The concept of rhetorical disidentification is developed through three case studies, Andy Warhol's Mammy, Alice Randall's The Wind Done Gone, and India's Traditional Knowledge Digital Library (TKDL). In each case, marginalized subjects seize agency in areas of law in which their experiences are often unrecognized, using rhetorical and performative tactics to critique intellectual property law's core assumptions through the retelling of histories of race and coloniality. Through Mammy, jazz singer Sylvia Williams disidentifies with trademark law's history of protecting histories which valorize whiteness by enacting her objections to Quaker Oats' ownership and zealous enforcement of the Aunt Jemima logo. For Williams' the trademark unjustly asserts ownership over experience of black domestic servitude in the South through the metonymic symbol of a pancake maker. Simultaneously, Warhol disidentifies with consumer culture's often monolithic and unthinking representation of the past by collecting and displaying racist Americana. In The Wind Done Gone, Randall creates a disidentificatory parody of Gone with the Wind which, when ultimately deemed not to infringe the Margaret Mitchell estate's copyright in the legal case Suntrust Bank v. Houghton Mifflin, serves as a testament to the power of novels and public trials in reconstituting infringement and identities in the American South. Finally, through India's TKDL, a digital database of indigenous knowledge, Indian government officials, Indians, and Indian Americans disidentify with colonial systems of knowledge collection, asserting their authority as marginalized subjects to classify and organize information. The TKDL's resistive rewriting of colonial power structures contests grants of intellectual property rights in yoga and asserts the role of South Asians in the production of knowledge. Taken together, these case studies not only demonstrate how marginalized subjects confront intellectual property law's understandings of race but also open space for other rhetors to intervene in legal narratives about race and knowledge, creating productive spaces and alternatives for thinking about future understandings of trademarks, copyrights, and patents.
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