Can you actually steal genius? Entertainment attorney Lisa E. Davis thinks so, and she’s got two centuries of receipts. She joined host Michael Harriot on Blacksplained, the weekly interview series from his Contraband Camp platform, to talk through Black intellectual property theft, the throughline connecting patent law in the 1820s to Spotify royalty statements today. Davis represents Spike Lee, Missy Elliott, and Wendell Pierce, among others, and just published Our Minds Were Always Free: A History of How Black Brilliance Was Exploited and the Fight to Retake Control.
The First Black Patent Holder
Start with Thomas L. Jennings. In 1821, he became the first Black American granted a U.S. patent, for a process called “dry scouring,” basically the ancestor of dry cleaning, per the Smithsonian’s writeup. He didn’t just pocket the money. He poured it into abolitionist organizing, including efforts to set up a Canadian refuge for people escaping slavery.
His daughter, Elizabeth Jennings Graham, took that fight somewhere else entirely. In 1854, she got thrown off a whites-only NYC streetcar and her father funded the lawsuit that followed. The attorney who argued her case? A young Chester A. Arthur, who’d go on to become president. They won. New York desegregated that streetcar line more than 100 years before Rosa Parks.
Bessie Smith and Black Intellectual Property Theft in the Music Business
Here’s where it gets ugly. Columbia Records exec Frank Walker crossed the royalty clause out of Bessie Smith’s contract while her white labelmates kept theirs. She was making money, so nobody noticed the theft while she was alive. After she died in 1937, Columbia kept reissuing her records and bragging about it in shareholder reports. Her son sued in the 1970s.
He lost. The court said too much time had passed to prove fraud, and that he couldn’t legally prove he was her son in the first place. Davis calls this the textbook example of what the law simply can’t fix, even when the wrong is obvious. It’s the same dynamic we flagged in our piece on the media reparations framework, institutions profit for decades, then hide behind procedure when someone finally asks for repair.
The Woman Who Actually Invented Rock and Roll
Davis credited Sister Rosetta Tharpe’s 1944 recording of “Strange Things Happening Every Day” as a foundational moment for rock and roll. Her guitar playing became the template, Chuck Berry copied it, so did Little Richard, so did Elvis. The Rolling Stones exist partly because a group of guys rented a bus to go see her play live. She wasn’t inducted into the Rock and Roll Hall of Fame until 2018, decades after she died.
Davis draws the contrast with Thomas Dorsey, father of modern gospel, who wrote down and copyrighted around 400 songs and built the training pipeline that produced Mahalia Jackson and Sam Cooke. Performance alone can’t be copyrighted, only the fixed recording can, and the label usually owns that. Tharpe had the genius. Dorsey had the paperwork.
Masters, Publishing, and Why This Isn’t Just History
Owning your masters and owning your publishing are two different things, and Davis says most people mix them up. No masters means you’re stuck with whatever royalty rate you negotiated, often 17 to 22 percent. Own your masters, and you get to cut your own distribution deals on your own terms.
Then there’s the Dred Scott angle nobody talks about. Benjamin Montgomery, enslaved, invented a propeller to pull steamboats out of mud. His enslaver tried to patent it under his own name, and couldn’t, because patent law requires naming the actual inventor, and Dred Scott had just ruled enslaved people had no rights courts were bound to respect. So the Confederate Constitution simply rewrote the rule: slaveholders could patent and copyright whatever their enslaved people created. Read more on how this history still shapes eligibility debates in our piece on Dr. William Darity and reparations eligibility.
5 Key Takeaways
- Black intellectual property theft doesn’t stay in the past. Bessie Smith’s family fought Columbia decades after her death and still lost, because the law protects institutions, not memory.
- Performance and composition get treated completely differently under the law. Tharpe shaped a genre. Dorsey shaped an industry. Only one of them had paperwork to back it up.
- Masters and publishing are not the same fight. You can own your songwriting and still watch someone else profit off the actual recording.
- Patent law has always had a race problem. Dred Scott got used to block an enslaved man from patenting his own invention.
- The imbalance didn’t end with streaming. Labels still control curation and marketing, and royalty math still shortchanges the people who made the thing in the first place.
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