23 Wake Forest J. Bus. & Intell. Prop. L. 164.
Imagine you are a rising social media star. You create a video using a catchy phrase that immediately takes off. The phrase gains national, even global, attention and everyone begins using it. Now, let us say a company uses your image and your phrase without your consent to increase its relatability with the public. The company does not reach out to you to offer compensation, however, and when you reach out to them seeking some sort of acknowledgment, they state that you have no rights to your image or phrase because you are not famous, your catchphrase is not distinctive enough to serve as a trademark, and your catchphrase lacks sufficient expression to be copyrightable. Further, the company explains that it can use your phrase because of its First Amendment right to free speech. How does this hypothetical play out if you are white? Does the situation unfold differently if you are a person of color?
The United States’ history of cultural appropriation suggests a different outcome based on race for the above hypothetical. The appropriation of people of color’s likeness and distinguishing characteristics have become somewhat routine for many companies’ marketing strategies. Either a company takes some form of expression that has been popularized by a certain culture and uses that expression without mention of the people, or the company may outright use the creation of an individual without giving credit to that person. In any case, appropriating one’s culture for economic gain has only compounded with the rise of technology and social media.