Michael Harriot: Whenever somebody says America was built on stolen land or talk about how black people's labor was stolen, somebody will always say, slavery existed in every culture. that's why I American style slavery as as race-based, intergenerational, inescapable, constitutionally protected human trafficking system that exploited our labor, intellect, and talent through violence or the threat of violence. we know about the land that was stolen from the Native Americans. you know, one of the things I thought about your book is ⁓ not just a exploration on like the history ⁓ of intellectual property and you know the legal aspects, but it's also about how ownership of our ideas, you know, oftentimes we talk about when we talk about history, how black people's labor has been stolen. And I always We know about the unpaid labor until we get our cotton picking, cotton pickin' reparations checks.

Lisa E. Davis: Yeah.

Michael Harriot: Think it's important to point out how our intellectual property and our intelligence have been taken away and used to build this country. Also, we all always frame it in, you know, we picked that cotton and not that we invented this stuff and gave the country all this art and ⁓ inventions and ideas. And you start before America was even America, right? You start in colonial times and you talk about but how can somebody steal your intellect, your talent, your creativity? Well that's the question we're gonna answer today. This black man who invented what was the precursor, I think you used that word, the precursor, to dry cleaning. And tell tell that story and why it's important.

Lisa E. Davis: Mm. Sure. So that's the story of Thomas Jennings, who was the first black man to receive a patent in the United States for a precursor to dry cleaning called dry scouring. And it is the foundation of the dry cleaning methods we use today, because technology builds on pre-existing technology. And he was a tailor in downtown Manhattan. I tell New Yorkers, if you go to Park Row, which is a street that's there today, that's where his tailor shop was.

Michael Harriot: I'm Michael Harriet and welcome to Blacksplained. So how can somebody steal your intellect, your talent, your creativity?

Lisa E. Davis: His clientele had a lot of clothing that was made from non-washable fabrics, silk and wool, and he said, Well, I've got to figure out a way to have my clients be able to clean stains from this fabric without ruining the the garments. And he came up with this method. He got a patent, he understood the importance of it because he framed it and put it over his bed in his house. But to me the important thing about his story is not just that brilliance.

Michael Harriot: Well, you know how they call Tyra Banks a supermodel, or how Rich Paul went from reping LeBron James to now being a super agent? well, Lisa E. Davis is one of the foremost entertainment attorneys and IP attorneys in the country, ⁓ but now they just call a super lawyer.

Lisa E. Davis: but what he did with the fruits of that brilliance because he took the money that he made and he plowed it into the cause of abolition. This was in the eighteen thirties in New York City. And so he was at the free men of color conventions and what those ⁓ gentlemen were trying to do, two things. They were trying to buy land in Canada so that there would be a refuge for escaped enslaved people. And they also were trying to set up a college in New Haven for black men. Not not women, but black men. But Yale put the kibosh on that. And so he was a constant advocate for the cause of black freedom. He didn't just say as some people do today, I'm just gonna secure the bag and I'm good. It was yes I'm good but I want to try to make sure other black people are free as well.

Michael Harriot: Right. And I think that is an important thing to consider because one, you also point out, right, like his activism, you know, of course we talk about generational wealth, what that is, right? And we often frame that as money, right? Like my daddy made some money, he passed it down to me. But he used the wealth that he built, and not just the money, the wealth, the ⁓ what he gained through activism, and he passed that down. she's chair of the entertainment group of Frankfurt, Kernett, Klein, and Sales, representing people in the film industry like Spike Lee and Wendell Pierce, rappers like Missy Elliott and Most Def, authors like Terry McMillan and Manning Marble and you know me.

Lisa E. Davis: Right.

Michael Harriot: To his children. His children became essentially became activists, right? ⁓ his daughter, you know, D

Lisa E. Davis: Right.

Michael Harriot: and she's author herself. She just released the book. She just released the book, Our Minds Were Always Free. A history of how black brilliance was exploited ⁓ and the to retake control. so she's the person to answer today's question on Black's Plain.

Lisa E. Davis: That's d I love that story. So his daughter, Elizabeth Jennings, she became an activist and the story is so great because she ended up desegregating New York City public transportation almost exactly a century before Rosa Parks. You know, people people in the north are often so arrogant they act as though there's no racism up here. and we have a you know, we call it up south. It's d it's no different. It's just, you know, maybe a slightly less less violent unless you go to Bensonhurst. Anyway, what she did, she was on a streetcar on her way to church and they had segregated streetcars. She was in a hurry, so she got on the the whites only streetcar, and the driver tried to kick her off and she said, No, I'm late. So he stopped, got the cops, and the cops basically roughed her up and threw her off the streetcar. And again, because her father had influence, money, and access, he convened ⁓ the free black people in.

Michael Harriot: before we begin, I wanna black explain what black explained

Lisa E. Davis: New York City. They had meeting. They said, okay, we're suing the streetcar line. They ended up hiring a young lawyer by the name of Chester Arthur, who ended up being the president of the United States, to sue the streetcar. They won and desegregated public transportation in New York City in 1854.

Michael Harriot: I'm sure you've been there before. You ask a question, and the answer like it came from a professor from a predominantly washcloth list Ivy League school telling an MPR reporter something he read on Twitter, And I I think, you know, opening the book with that story and tracing that wealth, right? Again, not just money, but that wealth and what black people have done with the fruits of their intellectual labor is important because, you know, we're in a moment now where we are kind of talking about the effects of capitalism. And I always think it's important to point out that which pretty sure is how Chat GPT works. Well, white splaining. This is black splain. each week we'll ask an actual scholar or an expert to answer one specific question about history, politics, culture, science, or you know, whatever's got people talking. And we'll break it down from a perspective too often missing from a conversation. A black Capitalism can be practiced and a lot of what we're talking about is essentially racism, inequality, and greed through the lens of capitalism. And because we live in a capitalism we a capitalist society, we think it's capitalism when maybe it's just greed.

Lisa E. Davis: Mm-hmm. Right, right. Because there is in theory

Michael Harriot: this ain't a lecture. It's smart, funny, and unflinchingly honest conversations with people who've actually done the research, lived the experience, or spent their careers studying the subject. You know, people who know what they're talking about. No false sense of objectivity, no performative neutrality, just the real information delivered with all the receipts.

Lisa E. Davis: We have we have not lived it, we have not seen it, but in theory, there is a regulated capitalism that could exist without ra racism that might provide people with a decent standard of living. However, y this country has practiced racialized capitalism from inception. So we can't even I mean I I sh I can't say we can't imagine because it's our job, black black people have always imagined a different future and and brought everybody else along with us. So we have to do that. But we we also shouldn't kid ourselves about what we're in. It's racialized capitalism because we were capital. Literally.

Michael Harriot: Right. And and and you know, building on what you just said, right? So you you later in the book you go into the story, right? You said we imagine a capitalist society that was equitable, that was fair, but you also demonstrate in the book us not just imagining that, but doing it, right? You talk about, you know, you start with Ben Montgomery, right? ⁓ you s you start with actually and I'm not saying that white people don't know stuff, but sometimes we frame white perspectives as objectivity

Lisa E. Davis: Mm-hmm, mm-hmm.

Michael Harriot: The double row reaper, I think it was called, right? Which, yep. And one of the things that is always interesting to me about that story, first of all, is that it probably could have struck a blow against slavery because it would allowed would have allowed people in those fields to reap cotton without the human labor twice as fast. Right? Right. And and

Lisa E. Davis: Right, the double double bladed plow. Yep. Mm-hmm. Right. That's right, right. Mm-hmm.

Michael Harriot: You also point out, right, like, you know, Ben Montgomery and how on in Davis Bend and this Mississippi plantation, which is essentially like it was a peninsula, but it was kind of treated like ⁓ a island, that you know, Ben Montgomery literally invented a boat to get off that island. and but what you go on to show that what they did when they got access.

Lisa E. Davis: Mm-hmm.

Michael Harriot: and they might not be wrong. They might just be talking about something that needs to be blacksplained. To the capital that they produce, right? When they got access to the fruits of their intellectual labor, they used it collectively. Right? Right. And so the imagination that we're talking about is not just theoretical. We've actually done it. Now, you've also, before we get too deep into, you know, I could go on and on about the history and about this book. You

Lisa E. Davis: Mm-hmm. Right. That's right.

Michael Harriot: I wanna I think it's important for the people seeing this to know that you're not just a person who studied and practiced intellectual law, like you're the intellectual law. I know, you know, there's client attorney privileges, but w what are some of the names that we would know whose intellectual property you've protected?

Lisa E. Davis: So You know, over the course of my career, I worked with Public Enemy. That's why Chuck D. gave me a blurb. I worked with Spike Lee. ⁓ I didn't put anything privileged in the book about Spike. Everything is from public sources, but I worked ⁓ with Spike early in my career. ⁓ I worked with Terry McMillan. ⁓ so lots of incredible writers, filmmakers Stanley Nelson, the documentary filmmaker, Wendell Pierce. So those are some of the folks that I have have wi worked with and continue to work with.

Michael Harriot: And me, of course. ⁓ I I mean in in s in many ways, right? ⁓ contraband camp wouldn't exist without you because like you know that, you know, and this is I mean it's I don't know I don't think it's privileged if I re release it like some people wanted me to s there was some people who wanted to tie me up in a contract that drape Tomaniacs wouldn't have existed, any of the th like the

Lisa E. Davis: And y yeah, that's that was that's up to you to say. Y you can say it. Mm-hmm. And I was like

Michael Harriot: Earth Wind and Fire documentary, whatever existed, and they had a whole team and I was like, Man, I really want to do this, but this seems kind of onerous. And you're like, nah, I got it. And and she had it. ⁓ and so in many ways, that's how contraband camp exists. Now, when you talk about intellectual property, what do you consider intellectual property? Because, you know, it's n I I think

Lisa E. Davis: Mm-hmm. Yeah.

Michael Harriot: Many of us consider it like ⁓ you know, stuff that we could have copyrighted, but it extends far beyond that. So what do you how do you define intellectual property?

Lisa E. Davis: So intellectual property is Things that can be copyrighted, things that can be trademarked, things that can be patented. So, for example, contraband camp, and we should talk about whether you have in fact registered the trademark in that, you should. ⁓ We can talk after. But so that that is a brand name. So that's intellectual property. Any music that you write that's an original tune, any play, any film script, any novel, any poem, those are all things that are copyrighted. Software code is copyrightable. Patents are inventions or unique processes of doing something. Those are things, and I am not a patent lawyer, so I won't go, you know, I won't get ahead of my skis, but that's that's what patents are for. So think inventions. ⁓ and all of those things are protectable. And we as black people are so creative, we often don't realize we're so busy creating, we're not. Necessarily always as focused on protecting because also being a col communal and collective kind of people, we think we want to share something that we've done with the community at large. Now, the good news is if you're writing something, once it's quote unquote fixed in a tangible medium, it is protected by copyright. So, you know, for example, I started the road to this book started with a blog that I was putting up on Facebook. Facebook. And so in theory, people could have ripped that off, people w you know were sharing it and but I have evidence of when I wrote it first and I have copyright protection in that. So I could go after people who took a blog post I wrote about Trump in twenty nineteen and copied it. So but people need to just be mindful of the uniqueness of what we're creating and be protective of it and not just say we're gonna put everything on these social media. platforms because the the product of the social media platform is the audience and if you are creating content that brings an audience then you are making money for somebody else because you can't monetize that attention at least not on that platform

Michael Harriot: And one of the greatest examples you give in your book of like ⁓ you know what the like the consequences and like the d dichotomy of being mindful of protecting your intellectual property and not is the story of, you know, you juxtapose the story of Big Mama Thornton with ⁓ with I can't think of his name now, but the ⁓ musician and writer who from Europe to kind of form the basis of what we now know as American music, a but he protected it at all and he was able to monetize it. Right.

Lisa E. Davis: Are you talking about Thomas Dorsey? Who the father of gospel music. So I was I was juxtaposing him with Sister Rosetta Tharp, who created, you know, really Sister Rosetta Tharp invented rock and roll. The first rock and roll record, Strange Things Happening Every Day, she released in 1945. She played the guitar, in initially it wasn't an electric guitar, but the the her style of guitar playing is the style that Chuck Berry, that, you know, all of the rock the early rock and rollers and

Michael Harriot: Right, right. I'm sorry. Yes.

Lisa E. Davis: And then later on, the Brit rock and rollers all imitated. And most of them name-checked her. Elvis, Jerry Lee Lewis, Johnny Cash, Carl Perkins, Chuck Berry, Little Richard. She's the first person to bring Little Richard up on stage when he was 14. They all name-check her. She didn't get in the Rock and Roll Hall of Fame until 2017.

Michael Harriot: Right. Right.

Lisa E. Davis: So but that's because what she had was a unique style of performance. Performances are ephemeral. They can't be fixed, except in a recording, which the recording company owns. But you can't protect that. Thomas Dorsey, on the other hand, who is the father of modern gospel music, basically started out as a blues musician, realized there's no difference between the blues and gospel other than the lyrics. And he basically took the style of blues. put s spiritual lyrics to it, started publishing, registering copyrights. He has, I think, 400 copyrighted ⁓ compositions that he wrote. He also set up the institution that trained black gospel choirs. So and he was the president of that organization until like a minute before he died in the early 90s. So from the 30s to the 90s, he is responsible for setting an infrastructure. So everybody from You know, the Clara Ward singers, all of the, you know, he was Mahalia Jackson's mentor, all of these people that we think of as the giants of gospel music or people that went on to have secular careers like Sam Cook and Lou Rawls, all of these people came through a system that Thomas Dorsey set up.

Michael Harriot: Right. And I think that's important. One of my favorite stories ⁓ about ⁓ Sister Rosetta Thorpe is that when she, you know, she went on tour in Europe and a bunch of guys from outside of ⁓ London rented a bus together and said, We want to go see this this woman who plays like we've never heard before. And they

Lisa E. Davis: Mm.

Michael Harriot: Rented this bus together. Sometimes they played together, sometimes they didn't. But that group became the Rolling Stones, right? So, right, like there is no question that like ⁓ Sister Rosetta Thorpe invented rock and roll, but she never got to reap the benefits of what she created. So let me ask, when you and you go through this through the book, right? So we're gonna get into some ⁓ stuff with, you know, from Oscar Michaud and

Lisa E. Davis: Mm, mm, mm. Right. Mm-hmm. Mm-hmm.

Michael Harriot: Kind of how the American the what they call the classic Hollywood system was created and how that excluded us. When you think about all of the stuff that we're talking about, what are some of the biggest intellectual property thefts that you can think of?

Lisa E. Davis: Mm-hmm. Well, I mean one of the biggest that I can think of is one that's early in the book, which is Bessie Smith.

Michael Harriot: Mm-hmm.

Lisa E. Davis: Because Bessie Smith, the Empress of the Blues, she, you know, single handedly rescued Columbia Records from bankruptcy. The year before they signed her, they were on the verge of bankruptcy. They signed her, she's selling millions of of records. The executive Frank Walker, who signed her, crossed out the royalty provisions in her contract. Now, her white label mates, Bing Crosby, Eddie Cantor, they got royalties, but she didn't. Another executive at Columbia

Michael Harriot: Right.

Lisa E. Davis: Columbia set up a publishing company and took all of her publishing. And I explore this a little bit with Thomas Dorsey. Because the blues was kind of ⁓ passed down from from musician to musician, there wasn't a tradition of people writing it down. And there is, you know, there's a black ⁓ executive who figured out, ⁓ if I can deliver fully packaged blues records, I can keep the publishing. So he was also ripping off black folks. So it's not always it's sometimes

Michael Harriot: Right.

Lisa E. Davis: It'd be your own people, as they say. So, but but she never got any royalties, she never got any publishing royalties. She was making a lot of money while she was alive because she was incredibly popular. ⁓ so that masked the fact that she was being ripped off. But when she died tragically in 1937 in a car accident, then that was the end of her ability to generate money for her ⁓ for her husband, for her son. And her son turned around and

Michael Harriot: Yeah.

Lisa E. Davis: Sued Columbia in the 1970s and said, You defrauded my mother, and I'm entitled to royalties because Columbia was bragging. They were putting in their annual reports to shareholders. The most successful reissues that we have are Bessie Smith. So here it is: 34 years, 33 years after she's died, they are continuing to make money from her recordings, and none of that money is being shared with her descendants. And the Court basically took a lot of time going through the the arguments and the and the law that they her her son's lawyers were relying on were the Reconstruction era civil rights statutes that say that black people have the same right to enter into contracts as white people. And so they said this is a civil rights law violation because the white artists were getting royalties and she was not. And basically the judge gave a lot of weight to the argument but said. Because of the amount of time that has elapsed, I can't prove that this was fraud. She did sign this contract. I can't prove that she didn't understand what she was signing. And also, you know, you, you know, Junior can't prove that you're her son because there are no adoption papers. So I can't prove that you're actually entitled to these royalties. So it's a real example of the limits of the law to write, you know, moral wrong.

Michael Harriot: Right. And one of the things, you know, you when you mentioned the statutes that they use, ⁓ those ⁓ civil rights era statutes, right? So early in the book, you explain that, you know, when we talk about the Dred Scott case, right, we talk about how, you know, how it affected enslaved people. But you also point out that that Dred Scott Supreme Court decision was used

Lisa E. Davis: Mm-hmm. Mm-hmm. Mm-hmm. Mm-hmm.

Michael Harriot: In another case, ⁓ you know, we're going back to Ben Montgomery and and double plow reaper. Talk about w what the well, it wasn't a Supreme Court case, it was essentially the attorney general of the United States, right, said like and t talk about what he determined based on that Dred Scott case.

Lisa E. Davis: Right. The pat not. Sure. Ba so basically, ⁓ I mean the ironic thing about Benjamin Montgomery is that he had this quote unquote un enlightened trafficker who b I think basically had the idea that, hey, if you're enslaved on my plantation and you have a side hustle, you can keep the money from your side hustle. And and Benjamin Montgomery was brilliant. So when he came up with this invention, this this basically propeller to get steamboats out of the mud, ⁓ his traffic Tried to register it for a patent, but in Benjamin Montgomery's name. And the patent office said, Hey, we have to follow Dred Scott. Dred Scott says these people have no rights, the land the law is bound to respect, so they're not eligible to own patents. And the quirk of patent law is you must be the inventor. You can't get a patent for something you didn't create. So Joseph Davis couldn't patent it in his own name. He could only Only patented in Benjamin Montgomery's name. So there was no patent. So you know that's that's an example of how widespread that dehumanization was. It did it, of course, affected our ability to be free, but it also affected our ability even then to get authorship and ownership of our intellectual property.

Michael Harriot: And one of the funny side notes to that story that you talk about in the book is that so Joseph Joseph Davis' brother was Jefferson Davis. So what was the f one of the first laws they passed when they created the Confederate States of America?

Lisa E. Davis: Yes, this is I Yeah, that is wild. So because leading up to this story, I talk about how the Confederates were c slaveholders were constantly lobbying Congress, saying, it's not fair that we can't own the intellectual property of the people we own. And they had the nerve to say, it's a violation of our due process rights, at like the the mind boggles. And so when the Confederacy established itself in its constitution, it said that slaveholders could in fact patent or copyright the creations of their enslaved people. Because they knew they knew who we were. They had a front row seat to what we were creating. They knew we were not just, you know, a a shapeless mass of bodies picking cotton. They knew what we and they went when they kidnapped us. They went to places

Michael Harriot: Right.

Lisa E. Davis: where the Africans had particular skills. They didn't just go get a random group of black people. So, fr you know, this was it was diabolical from beginning to end.

Michael Harriot: Now, there's a a question. We talk about, you know, you mentioned earlier about how kind of the blues and gospel and a lot of the music and the art that we created was passed down, right? What's the difference between like me being a bluesinger and you being a bluesinger, and I'm singing one of your songs that I heard, and a record company giving it to a

Lisa E. Davis: Mm-hmm.

Michael Harriot: Like, you know, during the fifties and the sixties, they took these white these black artists versions and produced like what they call mainstream versions of them for ⁓ s people who would become some of the first white recording artists. What's the difference between me as a black blues play player playing it on the blues trail and this these white people who say, well, they just let people use their songs anyway and making a hit record off of?

Lisa E. Davis: Mm-hmm. So so the differ so the thing that people need to understand with music is that once a song is recorded, there is what is called a compulsory license, meaning that anyone can do a cover version of that song as long as they pay the original publisher. So if I'm a blues singer and I have written a song and you do a cover, you can do that as long as you pay me. If Pat Boone does a cover, he can do that as long as he pays me. What the issue is One Oftentimes, you know, like with Little Richard, he was the writer and the performer. And so the version by the white person would eclipse the version by the black person, like Big Mama Thornton and Hound Dog. That song it wasn't written by her, but it was written for her. And her version was a hit. And then Elvis came along and n people don't even they'd be like Big Mama Who? They have no idea who she is. They have no idea that the song was written for a black woman, not for Elvis. And the reason it becomes an issue is If you're a songwriter, but you don't own your publishing, and a lot of these labels, that's what happened to Little Richard, his label insisted on ownership of his publishing. So he doesn't profit, or he doesn't profit nearly as much as he should from the white cover. And if he's also an artist, then his his art, his recording is being eclipsed and he's not getting his record royalty. So that's where the rubber meets the road.

Michael Harriot: So, you know, one of the things that I've always found interesting you talk about in your book is that ⁓ in oftentimes, like we know, okay, let's say the Pat Boone version of a Little Rec Richard song, right? Pat Boone, if you asked Pat Boone or many of those white artists, they would say, Yeah, yeah, I got it from from Little Richard, right? And the record companies and the people like they did

Lisa E. Davis: Mm-hmm. Mm-hmm. Mm-hmm.

Michael Harriot: A lot of times they didn't know that they were kind of bankrupting these black artists by performing their songs. Do you think it's their responsibility to know this? Or do you think like they benefited from the theft ⁓ by not knowing?

Lisa E. Davis: I think you know What is the number one thing white people always try to protect? It's the image of their innocence. And so their innocence is dependent on them not knowing. Now it and it varies, I would say it varies from person to person. Because, for example, you know, Bobby Womack initially was pissed when the Stones did covers of his ⁓ songs, and then he started getting the checks, and he's like, I'm good, I'm good. Because it's n in not in it's not every instance where the black artists are being ripped off. Sometimes they're getting paid. Barry Gor Gordy and Money. The Beatles did a cover and he made lots of money from that song. So it it varies, but there are also tons of examples of British rockers using blues songs where they knew who the writers were and they would change one little thing and then register the copyright in their own names. Now that's theft. So you know one

Michael Harriot: Right. Robert Plant, I mean, famously said, like, yeah, I do it. That's how I do it, right?

Lisa E. Davis: Yeah, which is just which is just outrageous. You know, the the one he I got lots of other problems with him, but the one rocker who didn't do that was Eric Clapton. He you know, he didn't, but lots of other white ⁓ British rockers did.

Michael Harriot: And and so when you said that like sometimes they would pay, sometimes like if you cover someone's song and pay them, it's okay, right? Who determines what that rate is? Is is there like a standard rate or do you have to negotiate what that ⁓

Lisa E. Davis: Yes. There's a standard there's a standard rate. There's a what's called the copyright royalty tribunal in DC and they set what is called the mechanical rate. And so those rates are set by law and that's what you have to pay. So so yeah, there's not there there shouldn't be any wiggle room there.

Michael Harriot: Now we hear a lot, ⁓ you know, in public and in on social media about rappers ⁓ you know, owning their masters. What is ⁓ like but nobody understands like what owning your masters means and why some people don't own their masters, why some people do, and is it a different thing than like owning your publishing? What does that mean?

Lisa E. Davis: Mm-hmm. So, I I love this question because I always try to explain to folks, any recording, there are two copyrights. There is the copyright in the song, and there's the copyright in the recording. And historically, the copyright in the recording or the masters is owned by the record company. And If you own your masters, then that's where you you know, what you've been getting without owning the masters is whatever royalty you're able to negotiate. So maybe it's a seventeen percent royalty, maybe it's a twenty two percent royalty. If you own your masters, then you can license it and you can say, ⁓ okay, you know, I'm gonna do a deal with Sony Distribution and I'm gonna pay them a distribution fee of fifteen or twenty percent, and eighty percent of that money is coming to me. Now of course streaming upends all of that because nobody's sending physical copies anywhere and everybody's kind of in the same boat of seeing their revenue shrink down to fractions of what it used to be because of streaming.

Michael Harriot: Yeah, that's that's exactly where I was going. So I just want to explain a little bit more. So if, for instance, we s ⁓ the NBA finals was just over and they use Earth, Wind and Fire's song, right? So they were using the masters of that, which Earth, Wind and Fire had to negotiate, right? And if they would have played a version of that, that would have been something different, right?

Lisa E. Davis: Mm-hmm. Mm. Well, right, if they had done a cover, if they've got if they had gotten the roots to play an Earth, Wind and Fire song, they would have had to pay the the publishing. But depending on where they were pa playing it, I'm like, I don't r I wa you know I was watching the finals. I'm a New Yorker. but s so let's say they were playing it at Madison Square Garden. ⁓ That is, you know, and again I this is getting in the weeds of copyright, but this that's a public performance license. And so that's either ASCAB or BMI and they're tracking that and so they would you know they would a account to Earth Wind and Fire or Earth Wind and Fire's publishing company for that public performance. On the other hand, if the NBA did a highlights reel and used Earth Wind and Fire, then that's what's called a synchronization license where they'd have

Michael Harriot: So so there's a ⁓ example that has been embroiling social media for the past couple of weeks, right? ⁓ it is, you know, it's the 20th anniversary of Reasonable Doubts. I think the 25th anniversary of Reasonable. No, the 30th anniversary of Reasonable Doubt, ⁓ by Jay-Z. And there is there was this ⁓ controversy over Target has an exclusive ⁓

Lisa E. Davis: ⁓ mm. Thirtieth, thirtieth. Mm-hmm. Mm-hmm. Expensive.

Michael Harriot: you know, you can get a an exclusive wax copy of that the original record, right? Now there is a new phenomenon in the music industry where people are essentially like leasing their catalog to these these companies. And one of the things that, you know, these this argument has missed out on is a lot of the stuff that you explained. But one of them is it is possible that like

Lisa E. Davis: Mm-hmm. Mm-hmm. Mm-hmm.

Michael Harriot: Jay-Z having leased his his catalog might not have made that deal, right? ⁓ right? ⁓ and so you can own your copies, I mean your your publishing and own your masters, right? But not necessarily make those deals, make those individual deals because a source of revenue is now people essentially licensing their catalog.

Lisa E. Davis: Mm-hmm. Right, that's true. Mm there.

Michael Harriot: to a lot of it is just venture capitalist groups, right? Right. And go ahead, go ahead, go ahead.

Lisa E. Davis: Right, that's right. That's right. They're all these cup yeah, they're all these companies. Yeah, there are all these companies that own or license catalogs because it's an asset class. It's just like people are turning fine art, it's late-stage capitalism, everything's an asset class. So now it it's all a question of what's been negotiated because typically if you are still alive and still performing and still have a reputation, then part of your negotiation with whoever that entity is is I have approval over certain kinds of deals. ⁓ but it depends on you know, maybe and and I would be surprised because I think Jay Z is very concerned about his image, I would be surprised if he ceded that control. So I don't know. I don't know. ⁓ I I just said peop people are imperfect.

Michael Harriot: Yeah and Yes, and and th the other thing is, right, like so when I first heard about it, right? And I saw this the headline, like Jay Z exclusive Jay-Z made an a ⁓ exclusive deal with Target, right? It initially didn't hit me like, ⁓ yeah, we're barcot cotton Target. Like is it po it could be possible that like he never thought of that while making the deal. And the other thing is when we say Jay Z made a deal, right, like

Lisa E. Davis: Mm-hmm. Mm-hmm. Mm-hmm. Mm-hmm.

Michael Harriot: Oftentimes, like how involved is the actual artist with these deals? When we we're talking about teams versus the person, how often is it like a group of people who whose jobs are protecting that image versus the actual artist?

Lisa E. Davis: think it varies from artist to artist, but Jay-Z of I'm not a business man, I'm a business man. I think he was involved. I think it's you know, he is at the head of rock nation. I think, you know We may all be fans. And again, people are imperfect. And when somebody is a billionaire, their their concerns or what you know they're aware of is different than what regular folks are aware of. So I think it varies from artist to artist and I have no insight into how much he knew or didn't know. But I I think he probably did know. But maybe he spoke to Reverend Bryant and said, Okay, the boycott is off, we're good. I don't know. And we also don't know this was announced. We don't know how long ago it was the deal was made. So maybe it was made at that point where they thought, okay, this is gonna be over, you know. So I don't know. Right. Probably not that long. Right. I mean it but it's been like a year, right? So I don't I don't think that

Michael Harriot: Or before it began, right? Like this is relatively new bark boycott. Yeah, yeah. It almost exactly a year, a little bit over a year.

Lisa E. Davis: Yeah, I don't think the deal goes back further than when the boycott began, but but again, w I don't have any insight into that, so but and I but I would just say in answer to your question about how much do artists know, it varies from artist to artist how involved they are or aren't with their team and and sometimes the directive might be, I just need you to go out here and make money and the people whose job it is, the managers and agents and lawyers whose job it is to make these deals, well we better come to the table with deals. We can't say, well, you know, we didn't make that deal because we thought you would have an issue. That's ultimately for the artist to decide. You know, it's it's the job of those people to find the deals.

Michael Harriot: Yeah. And so when you were sitting in some of those rooms, right, like

Lisa E. Davis: Mm.

Michael Harriot: How often are there deals in your in your experience that aren't made because of conflicts like that?

Lisa E. Davis: Very often. Not very often.

Michael Harriot: Yeah. So getting back to your book and the idea of intellectual property, we are, you know, seeing you talk you don't just focus on music or art. You you know, one of the things you talk about in your book, you know, you go through Spike Lee and how his creativity and you know is an extension of Oscar Michelle. A lot of people today don't know like We think like Tyler Perry was the first one to do this, right? Who is Oscar Bashon? Why is he a

Lisa E. Davis: So Oscar Michelle Was a pioneering black filmmaker in the early part of the twentieth century. He's a contemporary of D.W. Griffith. And in fact, you know, I talk about the movie he made in response to Birth of a Nation, which, you know, white cinephiles have been calling it this great film for over a century. And what it is, is it's like triumph of the will. It's anti-black propaganda. That's what it is. It may be skillfully made. People say, yeah, Lenny Reef Riefenstahl was a a skilled filmmaker but to what end and D.W. Griffith deserves that same smoke and it's only in the last maybe five or ten years that he's gotten it. and so Oscar Michaud was somebody who in a in an era where you had studios who not only weren't bringing in black filmmakers but to the extent any black person was in a film we were mammies and maids and we were shucking and jiving and and be looking completely embarrassing. He said, I'm gonna make movies for black people about black people the way I know them. And he made an astonishing number of films, particularly during the silent era, it became more challenging once talkies, you know, with the advent of talkies because they were more expensive and you needed different cameras and mics and all of that. But he made I think it was thirty nine features and he's the first black filmmaker To have a film exhibited at a Broadway theater, ⁓ movie theater in New York City, ⁓ towards the end of his career.

Michael Harriot: Right, and he was kind of like like what Spike Lee became, right? An artur. Right. He was the d writer and the director and the producer. He was essentially like again, we're thinking of Tyler Perry now as a first when a hundred years before that, there was Oscar Michael. and one of the things that Oscar Michael kind of had to do was like he

Lisa E. Davis: Yes. Right. Right, exactly right. Mm-hmm, absolutely.

Michael Harriot: was so successful. Like he could not do that in America, right? and he and but the American film industry kind of patterned his, took his pattern, his ideas, and kind of used that to form what we now became, what became the Hollywood cinema ⁓ factory of filmmaking, right? ⁓ So when you think about

Lisa E. Davis: Right, right. Mm, mm.

Michael Harriot: You know, because all of this, right, is framed under the idea of capitalism and ownership. is it possible to practice this form? Because, you know, the idea of intellectual property is first of all, is relatively new in the, you know, in the history of the world, right? Like, you know, you couldn't patent the Pythagorean theorem, right? ⁓

Lisa E. Davis: Mm-hmm, mm-hmm. Right, right, right, right. Mm-hmm, mm.

Michael Harriot: Right? And the idea of like owning ideas is a capitalist notion, right? ⁓ you know, that evolved, you know, from the French in the 1300s. But when we're thinking about capitalism more expansively, do you think it is it's possible for artists, for creators to

Lisa E. Davis: Mm. Mm.

Michael Harriot: capitalize on their product, on the the product of their imagination without exploitation, greed, or harming other people.

Lisa E. Davis: And so I think the answer to that is yes, of course it's possible. Because if you you know The both the music industry and the film industry have lots of bad actors, ⁓ both among executives and artists. But it is not by any means required that people be bad actors to be good artists. And we have to get away from that notion, which I think is more patriarchal than anything else, that, ⁓ well this person's a tortured genius and so they can treat women like trash and trash hotel rooms and do all kinds of things because look at these great records they made. ⁓ I do think it's possible for people to be creative, to be incredibly skilled artists without harming people. And in terms of you know the kind of art, you know, if you're talking about film, film requires an army of people, skilled people, to execute. And so the director is kind of the general the analogy they always make is that it he's he or she She is the general of an army. But again, you can enforce standards of performance without being abusive to people. It is totally possible. And there are plenty of people that do it. and I'm not sure why people think, ⁓ we should excuse the people that don't. You know, just again, just because something, and that this is where the greed comes in. Somebody thinks, ⁓ this is going to make a lot of money, so I'm going to sweep this harm under the rug because this is going to make me a lot of money. Instead of saying, that's a cost. The cost is not only in money. If if people are being abused in the in the production of this art, that's too high a price to pay. We have to start saying that.

Michael Harriot: In in the music industry, right, you know, we've kind of transitioned to where all music is streamed

Lisa E. Davis: Mm.

Michael Harriot: Is it still profitable or as profitable to ⁓ one of the things I want to know, quite struck that last question. One of things I want to know is, first of all, because like everything is on the internet now, right? ⁓ you can upload a song to Spotify. What is the advantage? Why do record companies like Columbia, like Sony, why do they still exist?

Lisa E. Davis: Mm-hmm, mm-hmm. ⁓ marketing and seed capital. So what the record companies do, ⁓ and keep in mind, ⁓ you know, a large chunk of Spotify's profits go to the record companies. The deal they made was we will let you use our catalog, but you've got to pay us. So the the purpose of a record company, it's you know, it's curation. Because the issue with Spotify, if everything is on Spotify, how do you find what you actually want to listen to? And I don't love the idea

Michael Harriot: Right.

Lisa E. Davis: ⁓ of algorithms. I'm old enough to remember listening to stuff on the radio, having a friend say, ⁓ have you heard the new whether it's the name new James Brown single or the new Jackson Five record or whatever it was? I'm old enough to remember that and that that's how people discovered music. So ⁓ so the so the job of the record companies is to do that curation to find people and then to do the marketing so that people know to go on Spotify and look for or Apple music and look for this particular art. That's that's what they do.

Michael Harriot: So I mean, but in a sense, right, the radio was still an algorithm, right? I've I've worked in radio early, well, I'm not even gonna say career, right? Cause I was in high school and college, I worked in radio. And I remember right, I could go in and like we had a color system, right? So you had to play two blues, ⁓ green, and ⁓ yellow every hour. And one of those like the blue might mean a slow song.

Lisa E. Davis: Mm-hmm. Mm-hmm. Right. Mm. Mm. Mm.

Michael Harriot: The green might mean something that is been released in the past three months, right? So a new song, a old song. But that was an algorithm, right? What's the difference with Spotify's algorithm and the algorithm that has always existed?

Lisa E. Davis: Mm-hmm, mm-hmm. Mm-hmm. So I I would challenge the nomenclature a little bit. I think when you talk about radio, yeah, corporate was imposing playlists on people, but that was people deciding what people were going to play based sometimes on payola, a lot of times on payola, you know, and Spotify, you know, they had this whole perf you know, perfect fit content that I talk about in the book, where they're trying to push people to listen to things in certain genres.

Michael Harriot: Yeah.

Lisa E. Davis: They can't do it in pop or in hip hop, but in other genres that are less popular, they're trying to push people to listen to music that they don't have to pay a royalty on. Now, they will say that they're not doing that, but you know, I I quote ⁓ a journalist who did a deep dive, and and the the evidence that she found was that they absolutely were doing that. So I think the difference is it is removed from humanity. And that's my issue with whether it's Streaming, whether it's AI, all of these things that are removed from humanity because you think about, I mean, you just did the Earth, Wind and Fire documentary. You know, there's a legion of black people that can talk to you about what Earth, Wind and Fire meant to us in terms of not just the quality of the music, but the spirituality behind the music and the inspiration and the hope. That comes from people. Machines can't give you that. Machines give you, whether it's an algorithm. them deciding what to play or whether it's an AI engine large language model you know creating quote unquote new music it's only doing pattern recognition it's looking backwards it's not looking forward so ⁓ it's a long-winded answer to your question but I think that that's the difference between old-time radio you know if you look at Alan Freed or Frankie Crocker people got who got caught up with payola a lot of the jazz that I know I heard from Frankie Crocker, that's an RB station, but he's I'm going to sneak some jazz in here because I can. You know, that's why I know Coltrane, my favorite things, you know, because he would play it. So when there's a person involved making decisions, there's always the room for I'm gonna do something idiosyncratic just because it's something I know and I think it will resonate with people.

Michael Harriot: Right. So so our minds were always free is not just the history of this genius and like the combination of that history of the genius and the intellectual property and how it was commodified and stolen from us, right? But it's also almost a a treatise on black creativity and how boundless and how important it is informing. What we know as American culture. What would you say is the ultimate, like when you wrote this book, what did you want people, when they finished and got to the last page, what do you did you hope they would close that book and say, I got blank?

Lisa E. Davis: Mm-hmm. ⁓ Would hope I tell people the book is a cautionary tale and an instruction manual. So if you it's a roadmap, it goes from the colonial era up through the Kendrick and Drake feud. So you can look at it as an audience member and a fan, as an artist, as an entrepreneur, and say, I can take lessons from what Thomas Dorsey did or Barry Gordy did. I can take cautionary tales from what happened to Sister Rosetta Tharp or happened To Billy Holiday or happened to Bessie Smith. I can look at what is going on with technology right now, reading about Spotify, and that can inform how I'm gonna show up as a fan, what I'm gonna do as an artist, or as an entrepreneur, what kind of infrastructure I might build to support the creativity and the forward thinking of black folks.

Michael Harriot: And as in a in a time where everyone is kind of becoming content creators, I think it's almost a must read, right? ⁓ if you were, you know, activist in the nineteen seventies or ⁓ you had or a black history scholar, you had to read the Boyce, right? ⁓ I think this is something that people who are going to be putting content or

Lisa E. Davis: Mm-hmm.

Michael Harriot: ⁓ their intellectual property into the world. I think this again is a must read. It's it's a necessary it doesn't just say, hey, you need to understand that ⁓ ownership is important, but it tells like the specifics of ⁓ what you have to do to your intellectual property. So I want to thank you for writing it. ⁓ Thank you for joining us. ⁓ I I ⁓

Lisa E. Davis: Mm-hmm.

Michael Harriot: Also, want people to go out there and buy our minds were always free by Lisa Davis. So thank you for joining us today.

Lisa E. Davis: Thank you for having me, Michael. This was great.