Top Ways IP Lawyers Can Advance Social Justice
Alt Legal Team | January 17, 2022
Note from the Alt Legal Team: This article is a summary of the ideas and research presented by Christian Williams, Tyra Hughley Smith, and Kimra Major-Morris as delivered in their presentation at Alt Legal Connect. Alt Legal does not take credit for any of the ideas, facts, or expressions in this article.
At Alt Legal Connect 2021, Christian Williams (Founder of Bevel Law), Tyra Hughley Smith (Founder of Hughley Smith Law), and Kimra Major-Morris (Founder of Major-Morris Law) delivered a highly impactful and meaningful presentation, IP Matters: Practical ways that IP lawyers can advance social justice. Typically, IP lawyers aren’t on the frontlines in fighting for civil rights and social justice. In this session, the presenters discussed how social justice intersects with IP law and ways in which IP lawyers can make a difference. This article summarizes some of the main points of the presentation. The session was rebroadcast as a live webinar which you can view here (registration required).
How does social justice intersect with IP law?
Social justice impacts IP law because historically, Black people and other communities have been discriminated against in the context of IP law and IP ownership. While certain discriminatory laws and practices have been eliminated, it is particularly important to understand the historical context as a frame of reference for modern-day IP rights holders who are of color.
Christian described the ways in which Black people have been historically discriminated against in the context of IP law.
- Patents: Enslaved Africans were unable to own patents for their agricultural inventions because they were not considered US citizens.
- Copyrights: Renowned Black musicians including Scott Joplin, Billie Holiday, and Little Richard were denied the benefits of copyright and rights to royalties.
- Trademarks: Brands have registered marks entrenched with racial stereotypes that subject Blacks and other communities to discrimination.
Lack of Diversity in the Legal Profession
With an understanding of the historical context of race and IP law in the United States, Tyra noted that in the current landscape, law is still the least diverse profession in America. The ABA reports that only 5% of attorneys are Black, 5% are Latinx, 2% are Asian. In IP, representation by Blacks is still very low. The AAIPLA estimates less than 2% of IP attorneys are African American, 2.5% Latinx, and .5% Native American and that 70% of IP lawyers are male.
How IP Lawyers Can Make a Difference
What can IP practitioners do to increase diversity in the profession and to improve representation of Black clients and clients from other communities? Christian, Tyra, and Kimra offered a number of practical ways in which IP practitioners can support social justice in their everyday lives.
Prevent Cultural Appropriation
Kimra noted that IP lawyers represent brand owners, and in order to prevent cultural appropriation and to ensure that the proper group gets compensated, IP practitioners must make socially responsible recommendations, encourage collaborations, and insist on getting input from Black people and other persons of color.
In the context of trademarks, be sure to dig deeper to understand the meaning of a mark. Learn whether it has meaning in another language or if it has meaning to a particular culture. This will help you avoid making culturally insensitive mistakes like the Michael B. Jordan and the J’OUVERT trademark debacle.
In the context of copyright, in particular, TikTok dances and similar artistic expressions, Black creators and people of color have expressed frustration in not getting credit for their creations. While they have originated some of TikTok’s most viral dances, in some circumstances, white creators are gaining more attention and financial benefit. If you are representing a creator who is not of color, have honest conversations with the client to understand the origins of the creativity. If you discover that the client didn’t create the dance, recommend a collaboration with the originator. This will show that both you and your client have sensitivity to the historical context where people of color were not given credit for their creations.
Avoid Selling Musical Catalogs
As a result of COVID-19 restrictions, many artists have resorted to selling their music catalogs. But Kimra warned that Black artists who have been historically robbed of their IP rights should not pursue this option, relinquishing their rights to their creative works. Instead, IP lawyers can help Black artists retain their rights and encourage clients to license their songs instead of permanently losing the income.
Provide Financial Support Clients in Need
Kimra has noticed many brand owners and creative clients are financially challenged and legal fees are out of range for them. She offers payment plans with no penalties. She will also provide free 15-minute consultations because there is an educational deficit and some clients do not understand whether they need a trademark or copyright.
Educate Clients About IP Rights
Elaborating on Kimra’s point, Tyra confirmed that education is very important and that she focuses on the information gap. She has a Facebook group where she gives out free education. She also does pro bono and low bono work.
Encourage Diverse Participation in Brand Development
Tyra recommended that brands encourage diverse voices to contribute throughout the development phase. She specified that it is important to have real voices heard, not just a figurehead that an organization can point to as its “diversity” representative. She also suggested reaching out with questions to Black and minority attorneys or HBCUs. Having real voices who can express criticism without fear of backlash can help organizations prevent disenfranchisement.
Ensure that Diverse Attorneys Receive Credit for Non-Billable Projects
Christian noted that there has been a big emphasis on hiring diverse employees, but an important thing that law firms need to do is to give credit when asking associates of color or staff of color to participate in non-billable projects like client pitches, that still contribute to bottom line.