OFFICE HOURS: The Theft of Black Brilliance... AI and Intellectual Property (w/ Lisa E. Davis)

Added: 2026-06-01

[00:00:12]Peace family. This is your brother Mark Lamont Hill. Welcome to office hours.

[00:00:17]Every week here on the Mark Hill official network, we hold office hours where we have in-depth conversations with some of the most brilliant minds, some of those some of the most original thinkers, some of the most controversial voices in the world today. And this week is no exception. We are having lots of conversations in the world uh about music, about artistic production, about cultural production and not just about the quality of the art. We know all about the quality of the art and there's lots of space to talk about the quality of art or to debate whether an album is good, whether a film was well made, etc. But there's other pieces to the puzzle that we often don't think about, specifically intellectual property. You see, as long as there's been black music, as long as there's been black art, there have been people stealing black art, people exploiting black art, people taking black creativity and leveraging it for their own benefit at our expense. But the question is why? The question is how?

[00:01:19]How does this happen? And also, what does it mean for it to happen in this moment where technology has changed, where AI is the the the boogeyman in the room, and where there are lots of debates, but also lots of resources for artists to reach out to in order to fight for their own intellectual property. Now, I love to have these conversations, but I ain't no expert on this, and the whole point of office hours is that I don't have to be. I can bring in some of the great minds who who do this work. And today I am joined by Lisa E. Davis, one of the top entertainment attorneys in the world today, a veteran of the industry, and she is also the author of a wonderful, wonderful, wonderful new book that we're going to talk about in just a moment.

[00:02:05]Uh, Attorney Davis, thank you so much for joining us.

[00:02:08]>> And thank you so much for having me.

[00:02:11]>> I love uh your book. I am excited by it.

[00:02:17]It's called Our Minds Were Always Free.

[00:02:19]You have to excuse me. I uh I I meant to bring it into the office. I'm I'm I'm reading it. I read it, I should say, on my on my on my on my Kindle. So, I'm going to bring up a graphic in a moment, but >> So, I bought I just I bought the audio version, the the physical version because I own a book store. I always got to had a physical copy, right?

[00:02:37]>> And and I bought the the Kindle version.

[00:02:40]Yeah. I enjoyed all of them. Uh I was able to complete the book by by those three methods. Um but but but I but I love the book. Um your book is basically a history of how >> sort of black creativity, black intellectual and cultural production has been exploited. F of >> is there something unique about black brilliance that makes it vulnerable to these kinds of forces?

[00:03:12]one one could assume that somehow black people are are under facing a different set of circumstances as creatives than others are.

[00:03:19]>> Well, I think black people, you know, we talk about um structural racism in in all areas of American life, why would the entertainment business or uh the business dealing with patents be any different? So the structural racism comes out, you know, for much of our history since we weren't treated as citizens. We weren't considered citizens. We didn't have any rights, as Dreadscott Court famously said, that the white man was bound to respect. And I talk about in the book um when there was an enslaved man who um attempted or his his trafficker attempted to get a patent for him and the patent office basically followed the Dread Scott reasoning and said enslaved people can't have patents because they don't they're not citizens they don't have rights. So I think those patterns continued post emancipation obviously in Jim Crow. Um and really up until very very recently um we were being continually taken advantage of except for savvy people who were able to figure out how the law worked and um and use it to their advantage.

[00:04:43]That that's a that that's that's an interesting point that I think for a lot of Americans the courts are the place where you get justice.

[00:04:53]>> The Constitution is a place where even if the the world ain't fair, we have a high ideal that we can aspire to that will allow us to ultimately get to the finish line in a place that's fair. Um where where do we get where do we go wrong with that kind of thinking?

[00:05:12]Um well I think that kind of thinking is ahistorical >> because you know there's a reason that historians talk about the second founding after the Civil War and after the Civil War amendments were passed because you can't really say that you have a democracy when you have people owning other people and you can't say you have a democracy when okay you don't technically own those people but you don't give them rights and you have a reign of racial terror that prevents them from exercising um the same agency as white Americans.

[00:05:53]So I think where people go wrong is that they you know that only you can only say those things are true if you just sort of carve out black people from the analysis. Which is interesting because I guess in some ways when the founding fathers as it were of the country were thinking about rights and freedoms they were carving us out. We we weren't part of the people.

[00:06:16]>> Absolutely. I mean and there are historians who say that freedom in the United States is defined against the lack of freedom of black people. that the con the very conception of freedom >> in the founding father's imagination requires a class of people who are not free >> because you know and we see that tension today with people who are prepared to burn this country down rather than share it with people who don't look like them.

[00:06:46]So take me take me to some of the early days of black creative expression and production in this country because >> black folk have been making art and producing art forever.

[00:07:01]>> What were some of the early moments of of this kind of theft of black brilliance that you just talk about?

[00:07:08]>> Well well there's I mean Eli Whitney is one example. You know, everybody in elementary school learns that Eli Whitney uh invented the cotton gin. And if you think about it, was Eli Whitney picking a single bowl of cotton? How would he even begin to conceive of what to do to make cotton harvesting more productive? And you know, subsequently, we learned that there was an enslaved man who had developed a gin device that he had learned about from his father.

[00:07:42]And that what Eli Whitney did was he mechanized it and because he was a white man, he had access to a patent and was able to go to the patent office and patent that device. So that's the that's the earliest documented example that I could find.

[00:08:00]That's so fascinating that so I I understand at that moment it makes sense, right? That black folk didn't have access to some of the most basic provisions of citizenship and we couldn't >> vote. We couldn't sit at lunch counters.

[00:08:13]You know, we were we were secondass citizens definitionally.

[00:08:17]>> So, I get how and we didn't have resources. So, I get how white people could go to the patent office and just take our stuff. Mhm.

[00:08:28]>> That story just sounds so familiar. It I feel like I've >> I don't only hear about the McCoten gins, >> you know, it happens again and again and again. I mean, the the thing that I found most interesting in my research is that what you see in reconstruction in that brief period before Jim Crow, there was an explosion of black patent ownership. You know, there's Elijah McCoy who came up with the lubrication engine for um for trains that allowed long-distance train travel. And that's where um that's where the expression the real McCoy comes from because train engineers would say, "Don't give me the fake thing. Give me the real McCoy.

[00:09:15]That's what I need for my train." We say it to this day and people don't know that it comes from it is named after a black man who was an inventor. So you know Lewis Latimer people people in New Jersey anyway learned that Lewis Latimer created the filament that allowed a light bulb to last longer than a few hours. But what they don't know is that Thomas Edison had Lewis Latimer installed the street lights in New York City, in Montreal and in London. and he wrote the textbook for electrification.

[00:09:48]A black man.

[00:09:53]Why are you on mute? I can't hear you all of a sudden.

[00:09:56]>> That was me. I'm sorry.

[00:09:58]>> Okay.

[00:09:58]>> With all the technology, I just still just hit the wrong button sometimes. Um and yet all we hear about is Thomas Edison when we hear about lights and and >> electric.

[00:10:10]Um, is this was this historically simply a resource issue? Was it simply a power issue? Was it just black people white people could just say it louder and faster?

[00:10:20]>> I I think that that's a lot of it. I mean, because you know, black people punch above our weight class in terms of the amount of things that we are responsible for innovating in in music and and inventions that we came up with certainly in the 19th century. Um, but a lot of that history gets erased. I talk about Sister Rosetta Tharp. you know, she literally 10 years before the explosion of rock and roll, she um recorded what is really recognized as the first rock and roll record. And she was a a gospel artist who performed for secular audiences, but Elvis Presley, Chuck Barry, Little Richard, Jerry Lee Lewis, they all name check her as an influence on them. So, you know, it's there's a lot of reasons that that folks black folks get erased and black women even more so.

[00:11:22]>> And yet we I'm always fascinated by how much black people are still invested in the process, still invested in the system. I mean, after slavery, black folk joined the military. Black folk, you know, to I mean, we believe in America.

[00:11:35]>> Yes, >> we believe in the system. And we have a a great amount of optimism that's contradicted by all historical evidence.

[00:11:44]Go >> black people were coming up with these patents.

[00:11:48]>> It there was a good faith belief that if we made something, >> we could protect it and we could covet it. I mean, and if we actually got a patent, we did.

[00:12:00]I mean, Thomas Jennings, the first black man to get a patent in the United States in the early 19th century, he got a patent for a method of um dry, you know, really the precursor to dry cleaning called dry scouring. He was a tailor. He um made all kinds of clothes with fine fabrics that couldn't be laundered. And his customers were frustrated. And so he he came up with this method. He patented it. He understood how important the patent was. He framed it and hung it over his bed. And then he made lots of money and he took that money and invested it in the cause of abolition.

[00:12:41]So then the key here for black people wasn't you're saying that it wasn't that the patent process didn't work. It was their access to the process.

[00:12:50]>> Right. That's right.

[00:12:52]And when I think about that and then I think about the 21st century, >> is that a similar problem that that we simply don't have access to the process?

[00:13:02]It feels like even when we access the process, things don't work out so well for us.

[00:13:07]>> Well, I mean, society is more complicated. So, it could be that somebody's an engineer and they're working for a company and so all of the patents that they come up with are owned by the company. You know, because what you're creating, you know, you're not making a cotton gin now. You're doing something much more elaborate, much more technologically advanced that you can't do in your garage necessarily.

[00:13:35]So, >> so, so that I'm glad you go there.

[00:13:38]Obviously, you go here in the book as well. Um, capitalism, modern capitalism, maybe late stage capitalism >> is interesting because the argument from pro- capitalist is that this is that the money stokes innovation that people are incentivized to create and to build because there's so much money and the next great idea comes because there's so much money in it. And if you really incentivize the rich, then we really got a chance because they can really invest in great ideas and technology to save the world and all this stuff. That's the AR. Um, and if if the patent process is what it's always been, is there any legitimacy to that to that argument?

[00:14:22]Like like like aren't people incentivized to create if they can patent their stuff and if they can take it to the market?

[00:14:29]>> I think that's kind of a croc. I I think that creative people create because they feel compelled to because they get exposure to a certain level of um you know of training whether that's musical training, whether that's film making training, whether that's training as a painter, whether that's training as an engineer. and they get um they they get an opportunity to develop that talent and that's what drives them. I saw a fascinating woman um the woman responsible for the technology we're using right now, voice over internet protocol, is a black woman who has something like 200 patents.

[00:15:16]>> Wow.

[00:15:17]>> And yeah, her name is Dr. Marian Croak and she is fascinating. She talked about her upra. I saw her at a conference and she talked about that her father who had not graduated from high school just always encouraged her to experiment. She talked about almost burning down their apartment because she was experimenting with chemicals and instead of getting in trouble, her father said, "Well, did you figure out what you did wrong that caused the fire and next time what are you going to do differently?" And it was just, you know, always encouraging her to explore. You know, they bought her a chemistry set, not a Barbie doll. So, and she, a black woman, created the technology we're using right now. Wow.

[00:16:04]That that that's amazing. And it's also important, I think, to highlight the fact that the black brilliance, the black genius that we often celebrate doesn't just come in the form of music.

[00:16:13]>> Right. That's right.

[00:16:15]>> Yeah. I I think that's something that people don't think about. And so even as we talk about these fights over black intellectual production and again you talk about this in the book I mean while you certainly give us a amazing history particularly around blues and gospel which I just thought was fascinating um you also make it very clear that that ain't the only place that this stuff is coming up >> right and you know Lisa Cook our you know embattled economist who's um a Fed governor that Trump was trying to get rid of. She did a study that showed that with the increase in racial violence was directly correlated to a decrease in patent applications by black people.

[00:16:54]>> Really?

[00:16:55]>> Yep.

[00:16:56]I cited in the book.

[00:16:59]Now, is that because they they were intimidated by they were afraid to do it or is it because they were the the the the landscape of violence was such that they didn't have space to even create?

[00:17:11]>> I don't know. And um I read part of the paper. I didn't read all of it. So, you know, I don't I'm not an economist, so I'm not sure that she went into that detail of understanding why, but she just said, "Look, here's, you know, here's a correlation." Yeah.

[00:17:27]>> Um so and and we certainly know that Jim Crow meant that people got substant in the early years. So that could mean that they just didn't, you know, as technology advanced, they had less ability to innovate technologically if they were in Jim Crow schools. It could mean that. It could mean that they were just so busy trying to survive and not be lynched that they didn't have time to experiment. I I'm not sure.

[00:18:03]>> Yeah. But both are distinct possibilities. I want to just say as a side note, I appreciate when someone says, you know, I don't know. We're so we're so trained in this business, you know, to have an answer even when we don't have an answer. And I I appreciate that. And it might not even be a knowable thing right now, but but I just I appreciate that response because it it'll uh challenge us to do some digging ourselves. Um I want to go back to this corporate thing.

[00:18:30]>> Um >> when I see people I I remember watching The Wire >> and there's this scene where uh uh Michael B. Jordan's in it >> and they're eating chicken nuggets in the in the in the yard and Michael B.

[00:18:47]Jordan, his character or Wallace is saying, "Wow, like these are this is an amazing thing. This these nuggets >> and like uh whoever made these nuggets must be rich right now, >> you know." And Diego turns to him and says, "No, basically I'm a paraphrase."

[00:19:03]They said, "No, he's just sitting in the room >> making more [ __ ] for McDonald's, right?

[00:19:10]They didn't give him an award. They didn't retire. trading a billion dollars for making this thing that made them a bunch of money. They they they might not even acknowledge it came from him. they just went right on down there and and kept on pushing and and it was a very kind of crude analysis, but a very accurate one of of how capitalism works in terms of creative production because people think again, you innovate, you get rich. But it seems like these corporations get all the profits even when the when the individuals inside of them are doing the heavy lifting creatively and intellectually.

[00:19:43]>> Well, I think that's true.

[00:19:46]That's, you know, that's true.

[00:19:48]>> So, so then how do I mean is that just is that unavoidable in capitalism? I mean, if I, if I, if I create the next big idea, >> but the company has the patent, >> I'm screwed. But if I don't work for the company, I don't have I don't have a laboratory, >> right?

[00:20:06]>> I don't have insurance. Like, h how do how do we avoid getting exploited by companies? I guess that's what I'm trying to get at.

[00:20:13]So I think you can't avoid being exploited by companies. It's it's just a question of the degree. So someone who is innovating and creating for some of these big companies, they're getting stock options, they're getting a good salary, they're getting bonuses, they're not, you know, making minimum wage if they're doing that that kind of work.

[00:20:34]And so they're not going to be as wealthy as the CEO, but they could end up being somewhat wealthy because they do get to participate. They get stock options. So they get pieces of ownership in the company in exchange for working there and and creating and inventing.

[00:20:54]But but but you when you sign when you enter into formal relations with these like when you get hired they pretty much you often are forced to sign agreement saying anything you make here is ours.

[00:21:04]>> Absolutely. It's a it's a it's literally what's called a work for hire which means if the job I hire you to do is to be an engineer then what you are doing for my company is you are an engineer developing processes or developing devices in the business that we're in.

[00:21:23]And so, of course, I'm going to own all that. I'm setting up the lab. I have the overhead for the building. I'm paying the the power company to for the electricity.

[00:21:34]I'm paying support staff to help you to work with you. I'm giving you all of these things that I'm paying for. So, in exchange, when you invent something, I own it. Epholater, one of our one of our viewers says, "Laws and adjustments to code patent law can help decrease the exploitation." I bet are there basic or fundamental or obvious things that could be done to make the relationship between individuals and corporations a more equitable one? Are there things we could do so that so that people who who are creating stuff don't get robbed or exploited?

[00:22:10]>> So, I don't want to talk too much about patent law because I am not a patent lawyer.

[00:22:14]>> Fair enough. You know, most people that are patent lawyers and pretty much all of them, they have a science background.

[00:22:21]I was an English major. I am I am I do uh entertainment, copyright, trademark.

[00:22:28]That's the area I know.

[00:22:29]>> Well, let's take it bigger then because I'm not thinking specifically about patents. I'm more thinking just are there are is there a way that the law could be reimagined or changed so that pe creators of any sort I'm think because I I really think in the music context more than I do context. Are the are the laws stacked against artists?

[00:22:45]Are they are they stacked against creatives in in any particular ways?

[00:22:49]>> So I I don't it's more that the business that has grown up around intellectual property law is stacked against artists, not the laws themselves. Because there there are a couple of things that operate with, let's just take copyright law because that's what covers music, film, television, you know, visual art.

[00:23:09]That's copyright. And you know the copyright law, the federal copyright law was was uh enacted in 1976, effective in 1978. There have been patches, but there hasn't been a whole scale revamp of the copyright law.

[00:23:28]Meanwhile, technology has been developing at an incredibly rapid pace.

[00:23:33]So the law is always lagging behind technology. So that's one reason that people that creatives get screwed because the law just doesn't cover certain circumstances. That's number one. Number two, when you have a gerontocracy like we have in Congress, you have people who don't even understand. They don't use the technology. They don't understand how it works. So, you know, they're not even able to really figure out how we regulate um the technology and how we amend copyright law to protect people, you know, better. I mean, you know, one example is streaming has really drained a lot of the value out of copyrights.

[00:24:19]And so you have u musical artists and I do a whole analysis in the book when you think about physical goods. When I was a kid I was buying a physical recording. I was not I was not streaming anything. I have you know CDs. I have I have a Yeah.

[00:24:37]I have a record collection.

[00:24:39]>> Me too.

[00:24:39]>> So I have vinyl and I have CDs. But what that means, what that used to mean is that if you're an artist, you know, you can count the, you know, record companies are notoriously opaque with their accounting, but still you could say this many CDs were manufactured, this many were sold, they weren't returned, this is how much money I made, and the price was, you know, a certain price point, and people were making really good money. And now with streaming, particularly if it's ad supported, you know, the the streaming service is not making that much. The the artists are making a piece of what the record company gets from the streaming service, which is a per subscriber price. So, it's a fraction literally of what they used to make. And >> and it's and it's a somewhat arbitrary um calculation. Is is it 1500? I I I saw these different numbers for like how much a stream equals to an album sale, right?

[00:25:41]>> And I was like, how do we decide that? H how do we arbitrarily decide that this number of streams equals an album sale?

[00:25:47]>> I mean, I'm not sure how they came up with that particular equivalent.

[00:25:52]>> I'm saying that rhetorically, of course.

[00:25:53]Like it it's more like clearly it ain't in in in the interest of of of the artist, >> right? And also it's like, you know, 1500. I mean, I probably played I probably played Kendrick's whole, you know, 1500 times in a month la last year when he dropped that surprise album. It was like literally on repeat.

[00:26:14]>> Yeah.

[00:26:15]>> For months. So anyway, um yeah, I don't know how they decided, but it it means that it's it's a infiniteesimly small percentage of musical artists now that can make $100,000 a year from streaming.

[00:26:34]And which what and what that means is the only way as an artist that you can actually make money is that you have to physically perform. And if you think about black folks, it's it's once again it's physical labor. So we we have this creative intellectual production. We write songs, we perform them. And um I saw somebody say you need to you all need to go back to CDs. That is I mean I do think people need to literally go back to physical copies of the music.

[00:27:07]And I'll tell you why I feel this way.

[00:27:10]Think about the oligarchs who control all of these platforms. If they I mean literally I bought Kendrick's album on vinyl because I said if they decide, oh, you know, we don't like this guy. He's too whatever. He's too black. He's whatever he is, and they decide to just yank him off of streaming platforms, you you can't do anything about that if you don't have a physical copy of the recording.

[00:27:35]>> Yeah.

[00:27:35]>> Same thing with books. There's an easy way, you know, if everybody has everything on Kindle and they decide, well, we're just, you know, we don't like we don't want you reading that book, then it can disappear. I mean, >> you know, and years ago when there were fights between the publishing companies and and Amazon um over the rates, they literally did take all of a publishers's um works off of people's Kindles. It's like you one day you had the book and the next day you didn't.

[00:28:07]>> I've seen that. That's absolutely It's absolutely terrifying. I'm watching the debate, not the debate, the battle between uh Drake.

[00:28:18]>> Mhm.

[00:28:19]>> And UMG >> and there I mean there's something in that >> uh that speaks to almost every issue you talk about in the book. I mean there's the artist piece of it, there's a technology piece of it.

[00:28:34]Um, there's the record label undermine the success of the artist when it makes sense. According to Drake, I don't know who again, I don't know who's right. And I don't >> I don't I don't I don't have a a winner or loser in that as much. It's just seeing the fight itself to me is is almost like a reenactment of of of just the same >> battles and struggles artists have had forever with with with companies.

[00:28:56]It is with the added element that there's a complete lack of transparency.

[00:29:03]You know, the the algorithms, you know, decide, you know, recommend music to people. It used to be now we all know that there was poliola with radio stations and so playlists were manipulated that way. But when you have physical copies of music, you could go to a friend's house and say, "Oh, let me see what you have. Let me listen to what you have." And you would discover music that way as opposed to it being pushed to you. You would go out and get it. You know, when they had record stores, people would go to record stores and listen to music, you know.

[00:29:39]But now, you know, it's it's passive and people don't have the same relationship with music and with artists that they did 20 years ago. Not, you know, not a hundred years ago, 20 years ago, >> right? That's it's stunning how quickly it's happened. I mean, it's it's an entirely >> it's an ent it's an entirely different it's it's an entirely different world. I I remember when uh Napster came and and Limewire and all that stuff came and >> I didn't appreciate in that moment how radically different and how radically the industry would be reorganized because of it. Um >> when then when iTunes kind of came, >> they kind of did they kind of killed that noise. Like I iTunes came >> and I didn't think much of it at the time. I said, "Okay, yeah, I'm not downloading an album. I'm the I'm always have a physical copy. I'm always I like album art. I like I like >> liner notes. I like all the things that come with with physical copies of music.

[00:30:41]>> And then within like five years, I did I didn't I didn't buy I hadn't bought anything. I didn't buy anything physical anymore except except when I was buying things as collector's items like like like records and things like that.

[00:30:51]>> I don't I don't think I understood what was happening.

[00:30:54]>> Um >> the Drake thing feels like an extreme example of the thing that I was afraid of. Not in terms of the the music coming out or not coming out or but also how artists would lose so much power and control somewhat arbitrarily like I mean I mean labels can just dis they cannot just disappear your albums. They can disappear you if if you're not careful.

[00:31:18]I mean Drake is such an extraordinary artist. He was able to push back. But but for for 99.9% of artists, if you're at war with your label, >> you can't win that fight, >> right?

[00:31:30]>> That that that that's scary. Um and it reminds me of something in the book.

[00:31:34]Could you talk a little bit about uh this Bessie Smith >> example? To me, that was one of the most >> uh interesting, thoughtful, and honestly saddening um stories that you tell in the book. Uh, could you just talk to me a little bit about the Bessie Smith story and her relationship to Colombia, but also just the career?

[00:31:56]>> Sure. Sure. I mean, you know, Bessie Smith, the thing about her is that people know who she is today. She was known as the Empress of the Blues, and she was signed to Colombia Records, which is, you know, basically Sony Music. Uh, there, you know, Columbia Records is still around. And the year before um she signed with them, they almost went bankrupt and she pretty much single-handedly rescued them from bankruptcy. But Frank Walker, the ANR man who signed her, crossed out the royalty provisions in her contract so that all she made was the $125 per master that they paid her for the recording sessions. Wow. And you know, which is and and she had her label mates, Bing Crosby, Eddie Caner, who didn't sell as many records as they were successful, but they didn't sell as many records as she did. They got royalties, but she did not. And she was incredibly successful during her lifetime because she was a huge draw. She was very popular both with black people and with southern like white racists and and you know white people who like to go slumbing up town. So she had you know huge fan base and she made lots and lots of money during her heyday. But then she died tragically in a car accident and you know in 1937 and then years later her adopted son sued to because he hadn't gotten any royalties or anything from Colombia and his argument was you defrauded my mother and I thought it was really a clever argument because his lawyers said under the civil rights statutes from the reconstruction era um that they had basically deprived her of the equal right to contract based on her race because the white artist got royalties and she did not.

[00:34:00]>> And and the judge in the opinion basically went through the whole argument and said this is a really good argument and you know there's no question that she was an incredible artist. There's no question that Colombia was continuing to make money from her recordings, reissuing it with every new format, putting in their annual report that their most successful reissues were the Bessie Smith reissues. This is in the 1970s, so more than 30 years after she died. And the but the issue the problem for the judge was one the statute of limitations. She died in 1937. This case is being brought in the 1970s. In the typical statute of limitations, the longest it runs is six years. And the, you know, the son made the argument that there was fraud and that they had hidden this from her. And the court said, well, you know, your fraud argument isn't super strong because you can't prove that she was fooled. Now, she was she was not very well educated because she grew up very very poor in Tennessee and she she didn't quite sign with an X, but she really was, you know, barely literate. So, you could infer from that um that she was defrauded. But the judge said there could reason one could reasonably assume that no one doesn't want royalties, right?

[00:35:30]>> Correct. If if and if the norm is if you've got royalty provisions in the contract in the preprinted contract and they're being crossed out by the record executive who also was her manager and and didn't point out to her that's a conflict of interest for me to be your manager when I'm the executive at your label. Um so and and then the other thing the judge said is you know that the that the son could not show any adoption papers. So he couldn't prove that he had been form you know and black folks this is what we do. We take in you know so and so's you know our nephew that you know parent something happened to or whatever and she certainly considered him her son but there was no paperwork. So he said you don't have what's called standing. you don't have the ability to sue on her behalf.

[00:36:25]>> Yeah.

[00:36:25]>> So, a terrible story.

[00:36:27]>> It's it's an awful story. And it's and and by the way, the the money that she made in the 30s, I think you said in the book you said it was something like $25,000 equivalent of like $75,000 now. That was almost all touring. Again, back to your supper, >> right? That's right.

[00:36:44]>> I I feel like I hear that story today so often. It looks different. Mhm.

[00:36:51]>> Um, in some ways, but I can't I can't tell you how many artists I have sat down with and interviewed in these last couple decades who have told me in some form or fashion that their contracts had things in them that no reasonable person would would sign if they had prior knowledge, >> right?

[00:37:10]>> Uh that that there or that there was some new technological advance. Um, I think about the ringtone era >> about, you know, I think about all these things where companies where people didn't realize what they were signing away >> and so they ended up not getting paid from from their stuff. I think about all the all the artists who who created amazing art and the companies decades later still making money and the artist is is is living, you know, maybe check to check, maybe if they're lucky.

[00:37:41]>> Right. That's >> this this is so unus it's not unusual.

[00:37:47]It's it's it's unconscionable is what it is.

[00:37:51]>> Mhm.

[00:37:53]>> It's not that people who can't read or who are impoverished are disproportionately talented. So why is it that when we look, you know, there's talent distributed across the the spectrum. So So why is it that these stories happen? It just feels like when I look at the music industry, so much of the talent, >> so much of the most successful artists don't get the proper um their proper due. Is the industry literally exploiting is the industry literally looking around for the most vulnerable people. Is there you know, you know, to record deals to >> maybe um I think it's there a lot of reasons. I mean, I I'm a lawyer, so I can read the language, but the language of a contract is impenetrable if you're not a lawyer. That's number one. And often what happens, you know, then the other issue is leverage. If you're a, you know, because it's always a a new artist or a young artist who is just so happy to be put on that they don't want to scrutinize things too too closely.

[00:39:02]Um, and the third thing that happens is that a label will say, and this happens more with music publishing than with labels, but they they'll say, "Well, I'm going to give you a big advance." The the artist and songwriter doesn't realize the big advance means um you you gonna you're going to take forever to earn out. If you're in hip-hop and you have samples, you're not, you know, like let's say you the delivery requirement is 10 songs. You say, "Oh, that's easy. One album is 10 songs." Not if you have samples. You could have an album with 12 songs and but what all you can actually deliver is the equivalent of four songs because you have two or three samples on every song.

[00:39:47]>> Say more about that because I I don't think people fully understand what that mean. Why Why do samples stop it from counting as a song?

[00:39:54]>> Well, they don't stop it from counting as a song, but you don't have 100% of the copyright. So when the copyright of any song that has that has lyrics is music and lyrics and it's typically 50% to the lyrics and 50% to the music. If you sample another composition for the music that um that songwriter and publisher doesn't have to say, oh I will take half of you know half of what you are um you know half of the music side of it. They could say well no I want all of the music side of it. So now instead of having one you know one song you have half of a song. And if you have two samples that you're using for the melody and they say, "Well, we each want 50%."

[00:40:45]Then you have nothing in terms of copyright interest in that song even though you've written the lyrics.

[00:40:52]>> Wow.

[00:40:52]>> So, so that can happen too. And then you you also get into a thing. This is getting in the weeds a little bit, but a lot of labels will say, "We're only paying for 10 songs at the reduced, you know, there's a a legal mechanical rate it's called." And they might say, "Well, you know what? We're paying 10 times the three quarter rate, and you've got 12 songs, so you get into what are called excess mechanicals, and then they deduct that from your So there all these ways.

[00:41:25]So, that's an arcane example, but I'm just saying there are all these ways where what you think you're going to get as an artist can get reduced without you really being aware of what's happening.

[00:41:38]>> Wow. I I suspect none of these rules ever operate in ways that give artists more money.

[00:41:44]>> Oh, absolutely not. No, never.

[00:41:49]Are are there any examples historically or currently where lab where there been labels who have tried to do something different where they've tried to be fair to artists? I asked because I I think even about the push in the early as uh toward people like Cotch Records, you know, where where artists were starting to say we're going to go independent.

[00:42:09]>> Mhm.

[00:42:10]>> But you still And so instead of getting $2 a record, allegedly they were getting, you know, >> four rappers were saying they were getting they were getting like like eight. I never believed them, but but even getting four >> Mhm.

[00:42:25]>> that's a big deal. If you start selling now, you don't have to sell a million records to make money.

[00:42:30]>> No, that's true. That's true.

[00:42:32]>> Are they Were those I mean, it's I don't know. Help me. Is was were those better options or was it just a or was it just like like Malcolm said just taking a knife out a little bit? Well, I think they were better options, but I mean to me, you know, the issue now, we've sort of gone beyond that because we're not talking about physical records anymore.

[00:42:56]You know, PE, we're talking about streaming. So, a label is really like a recording and marketing fund. They're not they're not pushing out that much physical product. They're, you know, their job is curation and marketing and servicing you to the streaming platforms.

[00:43:17]>> Yeah. And yet they still get so much of the money. It feels like they do less and seem to be getting more.

[00:43:24]>> Well, because they also they they they own a piece of, you know, they all own a piece of Spotify. I mean, I think several of them have um sold their shares of Spotify, but that was kind of the deal that was made initially. So, a lot of sp that's why Spotify wasn't making any money because they were paying all of their profits over to the labels.

[00:43:46]>> So, so I want to pivot. I have a million more music questions for you, but but I I I love the work you did talking about black exploitation, talking about uh I mean there's a few moments in film here that that you help us direct, but let me ask a bigger question, I guess, which is just how much different is this across other genres like film for example?

[00:44:08]Well, I think it's a lot different in film because if you think about your average filmmaker, they've a lot of them have gone to film school. A lot of them and Spike has a graduate degree. He teaches at a film school. You know, I talk about the LA Rebellion and all of these folks that were in graduate school. So, and also when you're making a film, you're directing an army. You can make an album in your bedroom. You cannot make a film in your bedroom. You have a crew. Well, >> I mean, you could, but you know, I don't know how good it would be. Um, >> shout out to Ray J. Sorry.

[00:44:42]>> Yeah. I was like that that, you know, >> I couldn't resist. Sorry. Go ahead.

[00:44:47]>> But, but generally, you know, you've got an army of people that have to that you as the director have to direct. So, um, so I think it's it's really different.

[00:44:58]And now, of course, the other difference is it takes a tremendous amount of money to do that, you know. So you invariably have to work with the studios or the streamers to get that level of investment.

[00:45:13]>> And are the but is the industry are the industry terms of for film any more or less favorable?

[00:45:20]Because I get the idea that you have a more educated creative, >> you have a lot more moving parts, maybe a lot more oversight, but ultimately are the are these film studios because there aren't that many of them. And typically when it's when there's a a small group of people who control everything, that that doesn't work out well with the mini.

[00:45:37]>> Um, >> does does the black director have a better chance at getting um a fair situation or a less exploitative situation than the black blues singer or or or jazz singer or rapper?

[00:45:51]>> I think a less exploitative, but you're still not necessarily going to make as much money as your project makes. I mean it just I mean again the the distribution now is a lot of it is streaming so there you know there isn't like I talk about television as well and and syndication which doesn't really exist in the same way because of streaming. So it, you know, it used to be if you take the the Cosby Show for example, you could have that on network, you could have that in reruns on Nick at Night, you could sell it internationally, you could sell it on airlines. There were all these different markets for one piece of intellectual property. But now, if you sell to Netflix, they say we're getting worldwide rights, you know, and that's it. you know, we we get everything. Now, they will they have what's called they have points, they have like kind of an imputed backend, but it's not nearly the same as what people were able to make in the, you know, in the heyday of broadcast television. I >> Is is there something short-sighted about that? I mean, I I feel like everything feels very ephemeral now.

[00:47:10]>> You know, these great albums come out, >> we wait years for them, and then we don't hear about them anymore. these great films happen. They're in theaters for like two weeks now and then they're gone.

[00:47:20]>> Mhm.

[00:47:21]>> And I could see how that could undermine an artist's ability to to make these long-term deals or to to to not prioritize backend money because I think there's not going to be much >> because everything is about the spectacle in the moment.

[00:47:34]>> Are we missing something with that line of thinking? Is there is there a long a long game that we should be thinking about that we're missing?

[00:47:41]I I think that's that's a bigger cultural question because you know to me what has happened with the advance in technology is that people are prizing convenience over community over creativity and you know that's that's part of the reason for the push for AI people although people are pushing back against that which is which I think is a good thing but people want convenience So they don't want to go to the movie theater.

[00:48:13]So the convenience is yes, you can turn on Netflix, but you may say, well, wait a minute, all these films, you know, are they are they as good as the films that used to take longer to develop that would end up in a theater. Um, and I think you're right about things feeling ephemeral because they are because people's attention spans aren't the same. You know, there's a there have been a lot of articles and discourse about how we don't have movie stars because people are too accessible because with social media, you know, somebody, you know, they they've talked about I I was listening to a podcast and they were saying that, you know, there are people that are big stars on television that people will not go to the movies to see them >> or they're, you know, they're ubiquitous because you're following them on Instagram, you're watching their Tik Toks, and you're watching their Netflix movie or their series on Hulu. So, >> yeah, >> you know, they're just they're interchangeable. There aren't um there aren't big stars. I mean, I think I heard Denzel actually give that advice to somebody. It's like don't make yourself so accessible and available because then nobody's going to pay to come see you, >> right? Because they always seeing you.

[00:49:30]It's not special to see you.

[00:49:32]That's a great point. Um, is AI the devil?

[00:49:43]>> It's not good.

[00:49:45]I'm I mean, here here's my thing about AI, and I'm going to sound like a kermagin when I say this, but it's making people dumber. I mean, MIT actually did a study and they showed that when people relied on it, you know, maybe not excessively, when people relied on it and they took some aptitude tests that they weren't, you know, they weren't as smart. Why are we outsourcing critical thinking? People are saying, "Oh, I'm going to have Chat GPT write my wedding vows. Are you serious right now?

[00:50:20]>> My god, >> are you serious?"

[00:50:23]you know, and what it creates, it doesn't look like what people create.

[00:50:31]You know, that's the thing that makes us human. So, why are we trying to outsource it? You know, I say in the book something about charismafree trillionaires trying to automate what they need but can't create themselves.

[00:50:46]That's why there's a push for AI because they can't do what creative people do.

[00:50:51]That's a fact. So, so should we then not be worried? I mean, there's a way that I worry about certain jobs being out. I mean, you call it C customer service almost doesn't exist anymore. So much customer service is AI, >> right?

[00:51:04]>> Um, which is occasionally helpful, I must admit, but it's often infuriating because they're not they don't actually get the problem and it's not nuanced enough. Now, the the long game of that is that it will generate itself. it'll get better and stronger until it eventually uh will be as good as anything we get from a human. That's the argument.

[00:51:25]>> But that's nonsense and and I will tell you why I say that.

[00:51:29]>> Okay.

[00:51:29]>> AI is pattern recognition. It can only look backwards. It cannot look forward.

[00:51:37]So you know any kind of leap in innovation in creativity in a new musical genre is somebody looking forward is saying we've always done it like this but what if I did this AI can't do that.

[00:51:57]So that's encouraging in a way.

[00:52:01]>> Mhm.

[00:52:03]But also that could just mean that we get locked in the same moment because we're so reliant on AI which can't innovate to the next thing like like we can't get another hip-hop. We can't get another Bbop. We can't get another whatever the thing is because AI is doing it. I mean, there's a way that that makes us we say, "Okay, cool.

[00:52:21]Humans will still be valuable." Or corporations don't give a damn about what the next big thing is and we'll be it'll just keep generating the same old thing for the next 20 or 30 years because of profit motives. But if people reject it, you know, because that only works if people are buying your product and if so if you are creating AI slop and somebody over here is creating human centered films or television and audience is flocking to humans, then that's where, you know, that's where the companies will ultimately go. They're going to go where the dollars are. And you know, one of the things that I, you know, somebody asked me after I wrote this book, they said, well, what's your vision? You know, like, and I was like, vision? I'm like, I who am I? I'm just an entertainment lawyer. Um, but one of the things that, you know, doing all this research led me to thinking is that what we need in this moment is we need more discernment.

[00:53:22]We as audiences need to be more discerning about who we invest our attention in because you know there are there are black artists and there are black artists. So you know as they say allkin folk and kinfolk. So we need to be discerning about who we hold up and venerate. Um, we need to be discerning as creatives where are we putting our product. Are you putting your product with an oligarch who wants to erase the 20th century and that's the only place your product is going to be available?

[00:54:01]That's that's a crapshoot, you know. So, so I think that's what we need to be doing in this moment. um not saying, "Oh, a you know, AI is just going to go away, but to say we ha we have more power. We have power as as audiences not to buy the AI slop, not to give that our attention and say, "No, we want like I just saw that Barnes & Noble is going to be putting AI books in the stores."

[00:54:31]>> My god, >> you know, which is to me is crazy, but we don't have to buy those books. I I didn't hear that, but that that's terrifying. Um, as an author, as a as a consu, as a reader, >> but that that's what scares me.

[00:54:47]>> I I I I've heard >> um in the last few months several songs >> that were made by AI artists, >> but be and yeah, is it AI slop? Yeah, on some level. But the problem is in the culture industry, so much music comes out sounds the same anyway.

[00:55:08]>> That's right.

[00:55:08]>> It didn't sound that different than the than the the random artist who sounds like everybody else. So, I guess I'm not so sure the audience will vote with their dollars and and move us away from the AI era because some people just want to beat some people just want >> uninteresting music.

[00:55:25]>> Well, music has gotten >> Yeah, it that is scary. And music has gotten progressively simpler over time. Pop music over time.

[00:55:34]I mean, literally, they've charted that.

[00:55:36]>> Um, if you listen to, you know, uh, an R&B song from the 70s or an early hip-hop song and what's out now, it's, you know, again, people are recycling the sample that a rapper used 20 years ago. and you know they don't they don't even realize that they're that they're sampling the original R&B song from the 70s, >> right?

[00:56:02]>> So So that is an issue. Um music in the schools, we have to start teaching kids how to play instruments again.

[00:56:09]>> That's a fact.

[00:56:11]>> I would even I would even I mean I'm into turntableism as well. I mean even if we think about the turntable as an instrument, I would even live go back to to that kind of that level of sampling again. like you said, we're like two steps away from even that or getting there.

[00:56:25]>> Um >> that that concerns me. And so I don't know um where the AI thing ends. But if people are because part of what I'm seeing with the AI technology, at least the threat of it is, as you said, it's pattern recognition, it's sourcing, it's it's it's re I guess what I'm saying is I I worry that people's work is going to get stolen. They're going to be taking pieces. When you make AI music, you're taking pieces. Even if it's not immediately um recognizable, >> they're taking whether it's riffs, whether it's there's something that they're taking and they're piecing it together from so many things that it might seem like a new thing, >> right?

[00:57:05]>> But artists might just get their stuff stolen and we can do about it.

[00:57:08]>> Well, the authors are suing now because that is exactly what they've done, >> you know, with with books and um you know, any any information that's online.

[00:57:19]they're just scraping all of that. So, people are suing and you know the good thing at least legally right now if something is AI generated you can't get copyright protection for that. So, that's um that's helpful because if a corporation can't get copyright ownership then they can't monetize it because they don't have an exclusive monopoly on that piece of create creative work. And I use creative loosely.

[00:57:48]And then the other thing is the environmental impact of all these data centers. Um I read recently that apparently Aaron Brochovich is getting back in the fight to fight these data centers and of course they're trying to put them all in black neighborhoods. Of course >> of course >> but you know the folks that are environmentalists are saying absolutely not. So from that perspective as well there are a lot of different ways in which there's opposition to this. So, I'm I'm hopeful, but I'm also unnaturally optimistic as a character trait.

[00:58:24]>> Fair. We all got our flaws.

[00:58:29]>> I think this question from Jeffrey. He said, "What about the expression there's nothing new under the sun?" That's an interesting question because I'm thinking about the legal push back to what you're saying and and I could imagine someone saying, "Well, yeah, this AI is piecing this together in in a general way, but that's what we've always done that there's no piece of music that's not influenced. There's no cord. Everything is had is influenced by this chord progression or this time signature or this style or this cadence." And and and and maybe we can't hold AI to a different standard. Maybe maybe it's I mean someone just here just said Mark there only 12 notes right meaning like >> but they're infinite combinations of those notes because and and there are copyright infringement suits when somebody says well that song sounds a little bit too much like Marvin Gay and you know then you just about to give the blurred lines she's talking about the blurred lines example >> uh which I think is a really great example with Robin thick and felony and and um that sounds >> a little too much like Marvin Gay even though he said it was just an influence that difference between an influence and an actual straight Jack >> is is it's not as hard to distinguish as we might as we might want to pretend.

[00:59:48]>> Right. That's right. That's right. I mean you and you have musicologists come in, you have expert testimony and that you you know that's how you make the case. Um, so, >> okay. So, how how will because I'm thinking about AI, but I'm also thinking about and it ties to AI. I'm thinking about bots and obviously you have a whole chapter devoted to this. Uh, >> that changes how we understand consumption, how we >> think about the measurement of consumption.

[01:00:18]>> I mean, bots are bots don't scare me as much as AI, but they they scare me, too.

[01:00:25]What what role did does all this techn technological stuff this quasi human stuff or sometimes bots are real people who are >> people right pretending to be somebody else right >> exactly h how does that play into all of this >> well I think all of it you know all of it influences people and you know we've seen that social media can influence self-esteem you know it's done a number on young girls for example Um, it's had a a terrible impact on democracy. Um, and I think, you know, people say often that you can't put the genie back in the bottle, but people have to start interacting with other people in real life. And I think CO exacerbated and accelerated this trend of people just being in their homes and being isolated in front of screens. Um and that's that's a bigger issue than the entertainment business or you know intellectual property law. It is as a society we are human beings and human beings are social animals and we need to interact with actual human beings in real life and that that's the movement we should be pushing.

[01:01:45]>> Are you optimistic? You say I you have this optimistic thing. How optimistic are you about the future of black creative freedom of of creating a world where black brilliance isn't exploited and and and marginalized etc. I always bet on black people. So I am I am very optimistic about us. Um, and I also think that this moment has has given us a clarity and a an unapologetic nature that I haven't seen since maybe the 1970s.

[01:02:29]Um, so so it'll be interesting to see where it goes. I mean, I just read a a great piece by Latasha Brown about, you know, the corporations basically saying they'll be back that, you know, right now it seems like everybody's running away from anything having to do with black people, but there's a pattern. And she she starts with Cadillac in the 1930s and goes up through, you know, Target and all of that about how these corporations, you know, constantly play our communities. they, you know, because we have tremendous spending power. And so I think there are a lot of people recognizing in our community recognizing and and educating us all about the power we actually have and that we need to harness it for ourselves. So I'm I'm nervous because these people are crazy, but they're really crazy and hateful. Um, again, not news. wouldn't be news to our grandparents, but it's um it is kind of stunning, but I still I still bet on black people. Does does your faith in black people tie at all to the narrative of uh black ownership and how it has changed the landscape or expanded the landscape? I mean, I'm watching Tyler Perry build this whole sort of universe >> in Atlanta. I'm look I'm thinking about Oprah's empire. I'm thinking about uh all of these artists who don't have the scale of Oprah and Tyler Perry, but they have their own record labels or they or or at least they just own their own stuff.

[01:04:10]>> Um how important is black ownership to this? I think black ownership is important, but it's not a panacea because, you know, you have to look at, okay, is that person owning, you know, that person that owns their own artwork, their own enterprise? Are they employing lots of other black people?

[01:04:35]That's a that's a net positive. Are they giving money to charity? Another net positive. or are they just hoarding it for themselves?

[01:04:44]>> Um, you know, at all of it. I mean, it depend, you know, >> so it depends. I think it's a case by case on whether ownership, black owner I mean, black ownership is better than us working for someone else, >> right?

[01:04:58]>> But but we we can't be uncritical either, >> right? and and and and we don't want to replicate uh the the conditions of like like I don't feel better if people are fighting to get their creative freedom from Diddy than they were from Lear Cohen. Like like at the end of the day, we have to do something different with it.

[01:05:16]>> That exactly exactly right.

[01:05:18]>> Yeah. Yeah. Um this is absolutely amazing. I I want I want to thank you for writing this book. Um it's it's special.

[01:05:28]>> Thank you so much.

[01:05:30]>> It's accessible. It's smart. It's it's it's it's great storytelling, but it but it but it's it's sharp analysis. Um it's a book that I I think needed to be written. Some books don't need to be written, even if they're good. This one needed to be written. Um >> and and what I just got to ask you one just one authory question. What was it like to go from being this high power entertainment attorney to being an author?

[01:05:56]Um it was it was kind of wild actually because I represent a lot of writers. So you know for years I have worked with authors and so to be on this side of it um was was really is really a different experience and um the process of writing the book um was I mean it took me five years of because I had a full-time job um and three research assistants that helped me but it was also this just tremendous experience because I learned some things about our history that I didn't know And the more I, you know, I went down all these rabbit holes. I I felt like I can't just write about, you know, Uncle Luke. I have to understand what Miami was like. I have to understand what Detroit was like. I have to understand what Gary, Indiana was like. So, um, so that process was really, you know, it was an academic process that I hadn't been in since I was in law school. Um, so, um, so that was, it was kind of fun, actually.

[01:07:02]>> Wow. Wow. Yeah, I I learn the most when I'm writing. Like writing for me is a form of inquiry always. And I think that's something that people don't um always appreciate.

[01:07:13]>> You know, sometimes people think about writing as the cleanup work. Like like you do a bunch of thinking and then you dump it all on the page. But even in the process of of writing, >> I'm still going back. I'm still researching. Just in that process of writing notes or thinking about notes, >> all of it just creates more knowledge.

[01:07:28]And it was very clear that you were captivated by some of these stories and and and I could see on the page your your your sympathy, your empathy, your care, not just for the individual players in the stories, but for this bigger issue of black people.

[01:07:42]>> Um, it's very clear that you love black people and that you you you want us >> to be as free and as happy and as as as creative as possible. I I just think that that's I just think it's it's it's a rare thing to find in authors and and I just I appreciate it.

[01:07:57]>> Well, thank you so much. Thank you.

[01:08:00]That's that's a wonderful thing to say.

[01:08:02]>> Well, everybody, the book is available right now everywhere the books are sold.

[01:08:06]Of course, I would tell you ought to go to a blackowned bookstore. I know one.

[01:08:09]It might be at the bottom of the screen, but wherever you go, make sure you support this book. Buy one for yourself, buy one for somebody else. It's called Our Minds Were Always Free, a history of how black brilliance was exploited and the fight to retake control. Lisa E.

[01:08:26]Davis, the brilliant attorney. Thank you so much for joining me.

[01:08:29]>> Thank you so much for having me.

[01:08:31]>> Absolutely. All right, family. That is it for office hours. Please hit the like button, hit the subscribe button if you're so inclined, hit that join button. But also, if you want to support the work that we do at with office hours, with nights going, with everything else going on on the Mark Hill Network, please hit that QR code right there at the top of the screen.

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[01:10:24]>> Or you can join me for after class, a live Q&A for Patreon subscribers, where you can ask me anything in sports.

[01:10:31]There's nothing a Philadelphiaian hates more than the Dallas Cowboy me. I boo Dallas fans in person. Well, just about anything. If you really want to nerd out, you can catch me on office hours where I do intellectual deep dives with some of the world's most brilliant, creative, and controversial minds.

[01:10:49]>> There's a letter in the Shamberg Center where Malcolm X wrote a letter to Elijah mom and he said, "We have to get our prayer game up." Last, but definitely not least, you can catch my wife Melissa and me for In This Thing Together, where we have honest talks about life, love, family, and community.

[01:11:07]>> Were you happy after our first date?

[01:11:09]>> I think so.

[01:11:11]>> I think so.

[01:11:12]>> Honestly, I can't remember how it ended.

[01:11:14]Did we have sex?

[01:11:14]>> All of this and a whole lot more on the Mark Lamont Hill official Patreon.

[01:11:19]Subscribe today.