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Excerpted From: Anjali Vats, Temporality in a Time of Tam, or Towards a Racial Chronopolitics of Intellectual Property Law, 61 IDEA®: The Law Review of the Franklin Pierce Center for Intellectual Property 673 (2021) (258 Footnotes) (Full Document)


AnjaliVats copyAfter Joseph Biden won the 2020 presidential election, in an episode hosted by Dave Chappelle, Saturday Night, Live! led with a trademark skit. A lot of people have lost their jobs recently, Chappelle reminded us, including unfortunately a lot of Black people. "Sadly," he said, "these two Black people may never get their jobs back." The skit then cut to a non-descript skyscraper, followed by a board room, before zooming in on Maya Rudolph in a red sweater with a white bow, a yellow bandana, bright red lipstick, and pearl earrings sitting across from two white men and a white woman, played by Alec Baldwin, Mikey Day, and Heidi Gardner. The emotional scene began with Rudolph:

"Who doesn't love my pancakes?!?"
"Everyone loves your pancakes, Aunt Jemima."
"It's you. You're the problem."
"Me? What did I do?"
"It's not what you did. It's how you make us feel about what we did."
"But you can't fire me. I'm a slave! That's the only good thing about your job, is the job security!"

The two white men and one white woman in the room proceeded to fire Aunt Jemima, as well as Uncle Ben and Count Chocula, with the Allstate Man, who defended himself by saying "I sell security, my deep Black voice makes white people feel safe, like they're in good hands," barely escaping the same fate as the fictitious characters next to him despite pointing out that he's a real person. The joke, of course, was that these familiar, long-lived trademarks were finally being canceled, because white people were no longer comfortable with their potential costs not because they recognized the injustice of their ways.

Beyond the apparent critique of racist trademarks, this sketch makes a pointed commentary on anti-Black racism. Like the fictional characters in the room, Chappelle's Allstate Man is treated as a potential liability. Even after he reminds his employers that he's a real person, Baldwin persists because it is "better to be safe." The audience is reminded that anti-Blackness extends far beyond trademarked images. This skit showcases the tendency of branding to operate as racial practice and white liberalism to center superficial solutions, such as changing trademarks, at the expense of genuine equity, such as employing Black people. Baldwin's comments reveal that the object of the firings is to make white people comfortable, not repair the damage of structural racism. The Allstate Man's response, that his voice makes white people feel safe, comedically highlights the coded dance of racism by hyperfocusing on the experiences and feelings of white people to avoid getting fired. Unlike the Allstate Man, who reminds the audience that his real name is Man from Waiting to Exhale, Aunt Jemima appeals to her own feelings, not those of the white people hiring and firing her. Her appeals fail, partly due to her (quasi-)fictional status and partly due to their focus on her own interiority. Whiteness prevails, even in anti-racism, because it centers the wishes of white people.

The SNL skit also highlights that branding creates temporal problems as well as racial ones. The trademarks in the sketch represent the past and present of American racial politics, weaving a complex narrative of when and how race has operated in the nation. Aunt Jemima, played by the racially ambiguous Rudolph, bridges the Antebellum with the Postbellum. The character is dressed in her "updated" attire, in Quaker Oat's vision of post-civil rights era apparel. Situated alongside Uncle Ben, she reminds the viewer that both trademarks were created in order to reproduce the racial order of the American South in a post-Emancipation era. Count Chocula, a character who came out of the 1960s, stirred up controversy for reasons more related to Dracula than to race. He is fired even though he arguably never represented a Black man at all. The Allstate Man, like Aunt Jemima 2.0, represents the racial present, as well as the inequalities that mark it. He also demonstrates that, though white people's comfort level about their own racism has evolved over time, Black Peoples' situations have remained dire, with events like economic depression and global pandemic having a disproportionate effect on their well-being and survival.

I begin with this skit because it offers an important entrée into the subject of this Article: the intersecting politics of race and time in intellectual property law. Temporal concerns, as legal scholars have repeatedly observed, are inescapable in legal contexts. They are also the product of cultural choices, not immutable facts. Thinking about time, specifically how it operates and the implications of its flows, is valuable to understanding, as Orly Lobel puts it, "the contingency and range of possibilities for regulating temporalities and social interaction." I build on existing interdisciplinary work at the intersections of law and time by attending to the contours of temporality in the context of intellectual property law, as they implicate racial justice. I show how, in trademark law, the decision to default to Euro-American imaginaries of time work in the service of whiteness. More specifically, I show that courts have considerable discretionary authority to invoke and impose "racial time maps," which they have exercised in trademark law to the detriment of Indigenous Peoples specifically and people of color more generally.

Charles Mills incisively writes: "Whose space it is depends in part on whose time it is, on which temporality, which version of time, can be established as hegemonic." Margaret Chon's term "procedural gaslighting" provides a framework for thinking about how such temporal management can operate as a mechanism through which courts deny and invalidate the realities of marginalized groups through the workings of legal procedure. In brief, she contends that gaslighting, "the act of undermining another person's reality by denying facts, the environment around them, or their feelings," can occur through the strategic use of legal procedure. The impact of this can be significant as "targets of gaslighting are manipulated into turning against their cognition, their emotions, and who they fundamentally are as people." I maintain that one strand of procedural gaslighting functions through the invocation of one conception of time over another, with considerable racial implications. Racial time maps, as Mills understands them, are cultural and political topographies of race and temporality, built around the perspectives of particular groups of people. Racial time maps are a means of understanding "racial chronopolitics;" they help to home in on the relationships between social and political choices, race, and time. Mills explains: "The past is 'packaged' through 'schemata' that can be likened to 'mental relief maps' designed to accommodate particularly 'historical narratives' ... that purport to establish 'defining moments."' For instance, as Mills argues, a racial time map centered by Judaism necessarily conflicts with a racial time map centered by Islam when differing narratives of history, memory, religion, property, and resources collide. In an example that resonates strongly for many in this moment in its references to Al Nakba, land ownership is determined by racialized temporalities. In this instance, the reading of Al Nakba as completed event v. ongoing struggle is shaped by race, ethnicity, and religion.

This Article reflects on the relationships among race, intellectual property, and temporality from the vantage point of Critical Race Intellectual Property ("CRTIP"). More specifically, it offers one example of how trademark law operates to normalize white supremacy by and through judicial frameworks that default to Euro-American racial time maps. I advance its central argument--that achieving racial justice in the context of intellectual property law requires decolonizing Euro-American conceptions of time--by considering how the equitable defense of laches and the judicial power to create issues sua sponte operate in trademark law. I make this argument through a close reading of the intersections of race and time in three cases: Harjo v. Pro-Football, Inc. (2005), Matal v. Tam (2018), and Pro-Football, Inc. v. Blackhorse (2015). Through this critical examination, I aim to illuminate where and how time works to hinder racial justice in trademark law and encourage lawyers and judges invested in progressive intellectual property to intentionally decolonize their Euro-American temporal defaults. The Article is divided into three parts, followed by a brief conclusion.

Part I tells the stories of Blackhorse and its antecedents and Tam and its antecedents and situates both cases in the larger context of CRTIP. Blackhorse followed Harjo, a disparaging trademark case that ended with the defendants invoking a laches defense that the deciding court found to be dispositive. Tam was decided on First Amendment grounds after the appellate court sua sponte requested briefing on the free speech issues raised by Section 2(a) of the Lanham Act despite the fact that, prior to Tam, courts had long used In re McGinley (1981) as precedent to justify the constitutionality of disparaging and scandalous trademark provisions in the statute. Tam and Blackhorse collided in Iancu v. Brunetti (2019), which struck down Section 2(a)'s ban on scandalous trademarks on the grounds that its content-based determinations violate the First Amendment. Adopting an intersectional CRTIP approach focused on racial chronopolitics reveals why and how these cases turned out as they did.

The remainder of the Article considers how the temporal politics of Harjo, Blackhorse, and Tam are embedded in larger histories of race and colonialism. Put succinctly, making the Euro-American racial time maps of Blackhorse and Tam visible reveals how the attorneys and judges in those cases were able to strategically weaponize time and procedure to reinforce racism and colonialism. I demonstrate that, by using settler colonial logics similar to those in cases such as Johnson v. M'Intosh (1823), Harjo invoked Euro-American equitable conceptions of time to uphold white supremacy. Meanwhile, following cases like Citizens United v. FEC (2010), Tam invoked implicitly Euro-American "colorblind" conceptions of what Charlotte Garden terms the deregulatory First Amendment to uphold white supremacy and neoliberal capitalism.

Part II examines two mechanisms through which courts manage time, i.e. the equitable defense of laches and the judicial power to create issues sua sponte, and their significance as settler colonial formations of power that operate from Euro-American racial time maps. Part III offers an overview of the intersections between racial chronopolitics and law, by drawing on interdisciplinary discussions of race and temporality. Finally, the Article concludes by encouraging lawyers and judges invested in progressive intellectual property law to consider how their tendencies to accept Euro-American racial time maps as epistemological truth hinder the decolonization of trademark law and how they might address such tendencies by making intentional choices about race and temporality. Achieving social justice goals in trademark law requires embracing a multiplicity of visions of racial time and respecting its attendant consequences for U.S. law.

[. . .]

Trademark law has long been intertwined with race and colonialism, through the perpetuation and monetization of images that degrade and humiliate people of color. From Aunt Jemima, the Quaker Oats Pancake Mammy to Mia, the Land O' Lakes Butter Maiden, the racialization of Black, Indigenous, and Brown people has been commonplace in American culture. The circulation of trademarks that normalize racial hierarchies functionally reconstructs “better days,” even as the nation professes its desire to move toward a “colorblind” and “postracial” world. Even now, in 2021, battles over the cancellation of these trademarks persists. One representational and structural undercurrent in trademark battles involving people of color is that of racial time. Not only are the representations that people of color are struggling against often regressive ones that point to times that have purportedly passed, but the procedural mechanisms through which courts manage them also reveal a strong judicial monopoly on racial time maps. Affirmative defenses like laches and judicial powers like sua sponte highlight how race, time, and law intersect.

I have argued here that developing intentional modes of racial chronopolitics can help to address some of the dispossession that occurs through lawyerly and judicial default to Euro-American racial time maps. In the cases I examined here, i.e. Harjo, Blackhorse, and Tam, the courts' analyses of laches and judicial practice of raising issues sua sponte project Euro-American narratives about time onto Indigenous Peoples and Asian Americans. They also facilitate the convenient invocation of free speech issues in cases in which such issues have been treated otherwise for decades. Despite Tam's own protestations to the contrary, I read Tam as a pyrrhic victory, that enables the Slants to protect their name at the expense of deregulation and entrenches racial capitalism as well as settler colonialism. The racial libertarian logics of the case rely on free market and free speech (de)regulation to cure the ills of racism. Such logics largely revert to a status quo invested in protecting white supremacy, not the rights of Black and Brown Peoples. Defaulting to Euro-American racial time maps, as the courts in Harjo, Blackhorse, and Tam do, allows corporations to control narratives of oppression in ways that are contrary to the realities of the lives of people of color. Decolonizing racial chronopolitics and legal procedure is accordingly necessary and pressing, in and out of trademark law.

I want to conclude by gesturing toward the ways that lawyers and law professors can engage critically with questions such as the ones presented in Harjo, Blackhorse, and Tam. The first step in attending to racial chronopolitics is to recognize that lawyers and judges have a choice in how they engage with matters of time. After making this recognition, they can turn to crafting theories of time that they can leverage to make powerful arguments about racial justice and settler colonialism in the courtroom. Expounding upon these theories is an important next step, particularly insofar as it ensures that the default Euro-American racial time maps that facilitate racial and colonial exploitation can be carefully decolonized.

Anjali Vats is Associate Professor of Law at the University of Pittsburgh School of Law with a secondary appointment in the Department of Communication at the University of Pittsburgh. This Article develops arguments initially presented in her book, The Color of Creatorship: Intellectual Property, Race and the Making of Americans (Stanford UP, 2020).

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