The Constructive Trust as Remedy for the Appropriation of Jazz

Suggesting that the relationship between intellectual property law and legal protection for cultural authorship is a disjointed one, this paper examines how modern intellectual property law in common law systems could be adapted to remedy the cultural appropriation of early twentieth century African-American jazz music in the same way that intellectual property law remedies individual rights holders for infringements of copyrights, trademarks, and patents.The cultural appropriation of early twentieth century African-American jazz music by white American musicians is an important area of history which aligns well with modern debates about the adequacy or inadequacy of copyright law because, historically, inadequate copyright protection has increased the economic inequality in American society and shown that the African-American community has not fully reaped the benefits of its phenomenal creativity.This paper argues that some form of restitution is in order based on this inadequacy, because millions of dollars were made by white Americans from the marginalization of black Americans and then further from the music that arose from such marginalization. The paper operates from the context that it is socially and legally insufficient to simply recognize that African-Americans had their culture “stolen” from them and “culturally re-packaged” by white Americans, and that there is potentially no available legal remedy for such appropriation other than as an individual rights holder. Justice demands a remedy.Thus, the paper explores the possibility that the same ideas that govern the protection of individual invention, creation and expression could be portable to black jazz musicians who had their collective expression – including the unfixed and intangible parts of it – appropriated for profit. The paper argues that there should be a focus on judicial remedies for the appropriation or infringement of collective cultural expression because it is arguably as legitimate a form of copyrightable expression as anything else. More often than not, however, the issue of addressing remedies for cultural appropriation and “theft” is approached in determining how to protect cultures before the appropriation occurs. What makes this paper different is that the analysis is focused on legal remedies once or after the appropriation has already occurred.When all of the individual musicians’ expressions are combined, there is a body of music called jazz, which has its own uniqueness and distinctiveness. In other words, the whole body of jazz is greater than the sum of its parts. Jazz was a particular expression of ideas that was imbued with African-American experience and identity. If an individual-cum-culture’s expression is appropriated by another – an outsider, such as white America – simply because there is a desire to do so, it is easy to do so, or the individual author and his or her community is easily marginalized, the very act of appropriation is not diminished or lost. If that outside appropriator adopts that cultural expression and profits financially from it, such as with jazz, such appropriation may amount to unjust enrichment. However, drawing a straight line to this conclusion is more easily said than done and this paper delineates the journey to it.To this end, a leap in intellectual property law jurisprudence is proposed that goes from merely protecting individual authorship to viewing cultural expression as intellectual property. The paper examines modes of cultural appropriation, authenticity, and ownership as well as the common law intellectual property regime, and the appropriation of African-American music and culture through the examples of jazz, Solomon Linda (original author of the prolific “Lion King” song), Willie Dixon and Led Zeppelin. By analogizing mass restitution litigation for slavery and other class-based claims, the paper concludes by suggesting that a plausible or viable judicial remedy for the appropriation of jazz music (and other culture) may be found in the constructive trust.

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