The Cost of Being Cool

From the desk of Murdock, Esq.

Introduction: The Sound of the Beads

Sitting at my desk in Downtown Chicago, I hear the familiar sounds of another morning in the legal profession.

The low hum of the ventilation system. The courthouse filings arriving through the office printer. The uneven rhythm of traffic drifting up from the street. Beneath my fingertips, the pins of my Braille display rise and fall as I review a federal case involving allegations of discrimination, corporate negligence, and the peculiar American habit of profiting from people society has spent generations mistreating.

Then I hear the beads.

A light, rhythmic clicking moves along the hallway.

Wood striking acrylic. A delicate percussion accompanying footsteps toward my office.

For several weeks, our newest law clerk has been bringing the morning briefs to my desk. Her braids carry small beads at the ends, and I recognize her approach before she speaks.

The sound is familiar.

It takes me back to Englewood, my neighborhood, where the summer sidewalks once carried that same music. Girls laughing on front porches. Mothers calling children inside. The occasional argument over whose turn it was to get their hair done. Beads announcing movement long before their wearers turned the corner.

Those memories belong to a particular cultural history. One I know through experience, conversation, and the accumulated sounds of a neighborhood.

I had assumed our new clerk shared that history.

She entered, set the case files on my desk, and mentioned that she had gotten her braids done for a weekend music festival.

My law partner, Denise, joined us and complimented her hairstyle. They exchanged a few remarks about the festival before our clerk continued down the hallway.

Later, Denise mentioned that the clerk was white.

A small detail.

A useful correction to an assumption I had made.

After all, I cannot hear someone's ancestry through a hairstyle. Nor can skin tone, freckles, or the ability to withstand an afternoon in the sun establish whether someone belongs to the Black American lineage. Black Americans come in a remarkable range of complexions, features, and hair textures.

Ancestry is not a paint sample.

But the conversation brought another question to mind.

How did America become a country where a white woman's braids can be admired as a fashionable souvenir from a music festival, while a Black American woman wearing a culturally familiar protective hairstyle may still find herself explaining her professionalism to a human resources department?

Apparently, the hairstyle can enter the building more easily than the history behind it.

The irony is almost elegant.

America has developed an extraordinary appetite for Black American culture while maintaining an equally extraordinary talent for penalizing the Black American people who produce it.

The music is revolutionary until the musician demands royalties.

The language is entertaining until the speaker applies for a mortgage.

The hairstyle is fashionable until the employee wearing it asks for a promotion.

The fashion is luxurious after a European designer puts it on a runway.

Before that, it is streetwear, and sometimes considerably less flattering terminology.

The question is not whether people from different backgrounds should exchange cultural ideas. Human beings have been borrowing from one another since somebody first heard a neighbor's drumbeat and decided to improve the rhythm.

The question is what happens when one community supplies the creativity, another captures the profit, and the institutions responsible for protecting equality punish the original community for displaying its own cultural identity.

That is not simply a matter of taste.

It is a matter of power.

And whenever power enters the room, the law ought to have something intelligent to say.

Unfortunately, intelligence is not always the judiciary's most consistent export.

I. Love and Theft: America's Oldest Cultural Business Model

The appropriation of Black American culture did not begin with social media influencers, music festivals, cosmetic surgery, or luxury fashion houses.

It began long before the internet made imitation instantaneous.

Nineteenth-century blackface minstrelsy provides one of the clearest historical examples.

White entertainers adopted exaggerated representations of Black American speech, music, movement, and appearance while presenting Black Americans as objects of ridicule.

The performances were commercially successful.

The caricatures helped reinforce racial hierarchy.

And the audiences could enjoy the entertainment without extending dignity to the people being imitated.

Historian Eric Lott examined this contradiction in Love and Theft: Blackface Minstrelsy and the American Working Class (1993).

Lott argued that minstrelsy involved more than contempt. It also reflected fascination, envy, cultural desire, and an unstable relationship between white working-class identity and Black American expression.

The white performer could temporarily become the imagined Black American figure onstage.

He could borrow the music.

Borrow the movements.

Borrow the supposed freedom from polite social restraint.

Then wash off the makeup and return to a social order in which the person being imitated remained subordinate.

That arrangement tells us something uncomfortable about American cultural development.

A society can admire what a people create without respecting the people themselves.

Indeed, commercial admiration sometimes becomes a substitute for actual respect.

The performance becomes acceptable precisely because the performer does not carry the original community's social burdens.

Consider the development of American popular music.

Black American musicians transformed spiritual traditions, work songs, blues, ragtime, jazz, gospel, rhythm and blues, rock and roll, soul, funk, and hip-hop.

These genres did not develop in isolation. They absorbed influences from numerous musical traditions and were shaped by artists of different backgrounds. But Black American innovation was foundational to their emergence and commercial development.

As the music moved into broader markets, ownership, distribution, radio access, publishing rights, and recording contracts often determined who accumulated wealth.

The cultural creator and the economic beneficiary were not necessarily the same person.

That distinction is important.

It is also considerably more useful than shouting cultural appropriation at every white teenager who learns a dance.

An exchange of cultural influence is not automatically exploitation.

The exploitation occurs when recognizable patterns of exclusion, misattribution, unequal compensation, or institutional punishment accompany the exchange.

The law can identify some of those injuries.

Others remain outside its reach.

II. James Baldwin and the Romance of Someone Else's Suffering

In 1957, Norman Mailer published The White Negro, an essay exploring a white American figure who borrowed from the imagined life of the Black American outsider.

Mailer treated this figure as an emblem of rebellion against conformity.

Black American culture became associated with spontaneity, danger, sexuality, authenticity, and resistance.

For the white participant, the imagined outsider offered an escape from conventional society.

James Baldwin saw the problem.

In The Black Boy Looks at the White Boy, Baldwin challenged the romantic construction of Black American life that informed Mailer's argument.

The essential distinction was between choosing an outsider identity as a temporary experience and having that outsider status imposed through history and social structures.

A white person might find rebellion exciting.

A Black American denied employment, housing, or equal treatment is not necessarily enjoying a philosophical adventure.

The consequences are different.

So are the available exits.

This distinction remains relevant to contemporary cultural performance.

A young white entertainer may adopt Black American speech patterns because the style seems bold, humorous, or commercially attractive.

That choice does not automatically make the entertainer hostile to Black Americans.

But the choice can still become exploitative if the entertainer earns recognition for a style while its original speakers are dismissed as uneducated or unprofessional.

The problem is not cultural admiration.

It is selective legitimacy.

One person performs the culture and receives applause.

Another lives within the culture and receives a warning.

American institutions have become remarkably skilled at separating the cultural product from the cultural producer.

Baldwin understood that the separation could be psychologically convenient.

One can consume another community's art while avoiding serious consideration of its circumstances.

That is a useful arrangement for anyone who wants the music without the moral responsibility.

III. Eating the Other: Culture as a Consumer Experience

Cultural critic bell hooks explored a related problem in her essay Eating the Other: Desire and Resistance, published in Black Looks: Race and Representation (1992).

Her argument concerned the treatment of racial and cultural difference as something the dominant group could consume to make its own experiences appear more exciting.

Difference becomes fashionable.

Marginality becomes attractive.

The outsider becomes an accessory to the insider's self-image.

The consumer acquires the feeling of transgression without necessarily encountering its consequences.

Consider how contemporary advertising borrows from Black American cultural expression.

A corporation wants its product to appear authentic.

It adopts a familiar rhythm.

A particular speaking style.

A streetwear silhouette.

A dance.

A phrase circulating through Black American communities.

The campaign appears youthful and connected to popular culture.

But who is credited?

Who owns the work?

Who receives the licensing fee?

Who is hired to direct the campaign?

And who remains invisible behind the cultural material that made the advertisement successful?

Those are more useful questions than whether the advertising executive personally likes Black Americans.

Employment discrimination, copyright infringement, and unequal contracting do not vanish because everyone involved speaks pleasantly at the meeting.

Intent matters in some legal claims.

But outcomes matter too.

A polite extraction can still be an extraction.

IV. Racial Capitalism: When Identity Becomes an Asset

Legal scholar Nancy Leong provides an especially useful framework.

In Racial Capitalism, 126 Harv. L. Rev. 2151, 2153 (2013), Leong examined how individuals and institutions derive social or economic value from racial identity.

Her analysis extends beyond outright impersonation or cultural copying.

An institution may acquire prestige by displaying diversity.

A corporation may gain market access by associating itself with a marginalized community.

A public figure may derive credibility from proximity to people whose experiences the figure does not share.

None of these arrangements is necessarily unlawful.

Some may be mutually beneficial.

But the central danger is that racial identity becomes a commodity.

The people themselves become valuable primarily as instruments for improving someone else's reputation or commercial position.

That is racial capitalism as Leong describes it.

The framework helps explain why cultural enthusiasm can coexist with discriminatory institutions.

A company may market products using Black American cultural themes while maintaining hiring practices that disadvantage Black American applicants.

A fashion house may celebrate Black American creativity while excluding Black American designers from meaningful ownership.

A media company may profit from Black American vernacular while treating the same vernacular as unacceptable during professional interviews.

The question becomes whether appreciation is accompanied by fair participation.

Because a society cannot purchase moral credibility indefinitely with photographs, slogans, and merchandise.

Eventually somebody asks to see the receipts.

V. The Body as Fashion: Blackfishing, Cosmetic Trends, and Selective Beauty

Cultural imitation now extends beyond language and clothing.

Digital influencers can alter their appearance through makeup, lighting, tanning, hairstyle, image manipulation, and cosmetic procedures.

The term blackfishing emerged in popular discussion to describe situations in which a person who is not Black deliberately cultivates an appearance that suggests Black or racially ambiguous identity, sometimes for attention or commercial advantage.

The practice raises questions about authenticity and representation.

But it also requires analytical caution.

Full lips are not exclusive to Black Americans.

Curvy bodies are not exclusive to Black Americans.

Dark skin does not establish Black American lineage.

And no single hair texture defines the descendants of Black Americans.

Black American identity is historical and genealogical, not simply a collection of visible physical traits.

The relevant issue is therefore not whether a white woman has naturally full lips or chooses a hairstyle associated with several cultures.

The relevant issue is whether an individual deliberately trades upon a racial identity or cultural association while obscuring its origins or evading the discrimination attached to that identity.

That distinction matters.

Without it, criticism of cultural appropriation can become the same crude racial essentialism it claims to oppose.

Cosmetic fashion adds another complication.

Beauty standards change.

At different moments, commercial culture celebrates thinness, fuller figures, heavily contoured faces, or exaggerated lips.

The popularity of procedures such as lip augmentation and gluteal fat grafting reflects multiple influences, including celebrity culture, social media, advertising, and changing aesthetic preferences.

It would be irresponsible to claim that every such procedure represents an attempt to become Black American.

The evidence does not support that sweeping conclusion.

But it is reasonable to examine how features once stigmatized through racialized stereotypes can later become commercially desirable.

The social value assigned to a feature may change depending upon the person displaying it.

A hairstyle on one person is considered daring.

On another, unprofessional.

A fuller figure on one person is celebrated.

On another, it becomes the object of racialized ridicule.

The double standard lies not in the physical feature itself.

It lies in the social judgment attached to its wearer.

And that leads us into considerably more serious territory.

VI. The Chemical Price of Professionalism

The folder our law clerk delivered that morning concerned the federal hair-relaxer litigation.

In re Hair Relaxer Marketing, Sales Practices, and Products Liability Litigation, MDL No. 3060, No. 1:23-cv-00818 (N.D. Ill.).

The proceedings are centralized in the United States District Court for the Northern District of Illinois before Judge Mary M. Rowland.

The litigation involves claims by consumers alleging injuries associated with chemical hair-straightening products.

The allegations include failures to warn, product-related defects, and injuries involving cancers and other reproductive health conditions.

The defendants dispute liability and causation.

Those distinctions must be maintained.

An allegation is not a finding.

A scientific association is not automatically proof that a specific product caused a particular person's illness.

And a federal multidistrict proceeding is not a final verdict.

But the underlying public-health evidence is significant.

In October 2022, researchers from the National Institutes of Health published findings from the Sister Study examining the relationship between hair-straightening products and uterine cancer.

The study, reported by Chang and colleagues in the Journal of the National Cancer Institute, found that women reporting frequent use of chemical straighteners had more than twice the uterine cancer risk of women reporting no use.

Researchers estimated uterine cancer risk by age seventy at approximately 1.64 percent among women who never used the products and 4.05 percent among frequent users.

Those figures describe an observed association in the study population. They do not establish that every product was unsafe or identify a single chemical as the cause.

The researchers also noted that Black women could be disproportionately affected because of higher reported use of chemical straightening products.

That is where this case intersects with cultural pressure.

For generations, many Black American women have confronted expectations that professional hair should be straight, restrained, or otherwise consistent with institutional grooming norms.

The reasons individuals choose relaxers are varied.

Convenience.

Preference.

Fashion.

Time.

Family tradition.

Professional pressure.

No responsible legal analysis should erase personal agency by declaring that every Black American woman who straightened her hair was coerced.

But institutional pressure can influence consumer choice without eliminating it.

If employers repeatedly characterize natural or protective hairstyles as unprofessional, manufacturers selling alternatives enter a market shaped partly by discrimination.

That is the deeper public-policy issue.

Not simply whether a manufacturer sold a particular product.

But whether social demands concerning appearance helped sustain a commercial market whose potential health consequences are now under judicial examination.

The litigation makes that question impossible to ignore.

As of September 2026, the federal proceedings continued addressing expert testimony, discovery disputes, and pretrial questions. No broad finding had established liability across the entire litigation.

The court's September 22, 2026 order in the consolidated matter illustrates that these cases remain actively contested.

The legal irony deserves attention: Black American women have faced pressure to alter their natural appearance for acceptance, while questions about the safety of some products used for that alteration are now being litigated in federal court.

Meanwhile, another woman can wear a similar protective style as a festival choice, enjoy it for a few weeks, and move on.

The difference is not the existence of braids.

It is the institutional power surrounding the choice.

VII. Jenkins: When an Afro Entered the Seventh Circuit

Because this article begins in Chicago, one of the most important cases comes from the federal appellate court that governs this city.

Jenkins v. Blue Cross Mutual Hospital Insurance, Inc., 538 F.2d 164 (7th Cir. 1976) (en banc).

Beverly Jeanne Jenkins alleged that her employer denied her promotion and subjected her to discriminatory treatment after she began wearing her hair naturally.

Her administrative complaint reported that a supervisor said she could not represent Blue Cross with her Afro.

That allegation was significant.

It connected a workplace decision directly to a hairstyle associated with Black American identity.

But the procedural history requires precision.

The principal appellate question concerned whether Jenkins's Equal Employment Opportunity Commission charge was broad enough to support the discrimination claims she later brought in federal court.

The Seventh Circuit reversed restrictive lower-court rulings and allowed her claims to proceed.

The court did not issue a final merits judgment holding that every restriction on an Afro automatically violates Title VII.

Its contribution was procedural and substantial.

The court recognized that civil-rights complaints should not be defeated by an excessively narrow reading of administrative paperwork.

That may sound unremarkable.

It is not.

Civil-rights law often requires injured workers to navigate administrative procedures before reaching a courtroom.

If a woman explains that she suffered discrimination after adopting a natural hairstyle, the legal system should not pretend it cannot understand the broader discrimination allegations simply because she failed to check a particular box.

Jenkins demonstrates how a procedural ruling can determine whether substantive rights receive a hearing.

The courthouse door matters.

Especially to people repeatedly told to change themselves before entering it.

VIII. Rogers and the White Actress Problem

Five years after Jenkins, federal law produced an especially revealing decision.

Rogers v. American Airlines, Inc., 527 F. Supp. 229 (S.D.N.Y. 1981).

Renee Rogers was a Black American employee who challenged an airline grooming policy prohibiting certain employees from wearing all-braided hairstyles.

Rogers argued that cornrows carried cultural and historical significance for Black American women.

The court rejected her broad challenge to the grooming policy.

Its reasoning relied heavily on the distinction between characteristics considered immutable, meaning not readily changed, and characteristics considered mutable, meaning capable of alteration.

The court characterized an all-braided hairstyle as a changeable practice rather than an immutable racial characteristic.

That reasoning is contestable.

It reduces a culturally significant practice to the fact that somebody can physically change it.

One could apply that reasoning to nearly any expression of cultural identity.

The opinion also included an extraordinary observation.

The defendants asserted, without contradiction in the record, that Rogers began wearing the hairstyle shortly after a white actress had popularized braids in the film 10.

The actress was not named in that passage, but the reference was to Bo Derek.

Think about the sequence.

A Black American woman invokes the cultural significance of braids.

An employer points toward the style's appearance in mainstream entertainment.

A federal judge includes the hairstyle's popularity through a white actress in the legal discussion.

The court's ruling did not rest exclusively on that observation.

But its presence in the opinion is illuminating.

A style with a long cultural history becomes more visible to mainstream society through a white celebrity.

That visibility then helps support the argument that the style is merely a changeable fashion choice.

One might reasonably ask whether the history of a hairstyle should become less relevant because someone else made it fashionable.

The law offered a rather unsatisfactory answer.

There is, however, an important qualification.

The court did not extinguish every claim Rogers brought. It allowed a narrow allegation of racially discriminatory enforcement to remain.

That detail matters because a policy appearing neutral on paper may be administered unequally.

A dress code can say the same words to everybody and still be enforced selectively.

The question is whether the employer actually treats similarly situated workers consistently.

The difference between facial neutrality and discriminatory application is not legal trivia.

It is often where the case lives.

IX. Catastrophe Management Solutions: The Locs That Cost a Woman Her Job

Decades later, the same debate returned.

Equal Employment Opportunity Commission v. Catastrophe Management Solutions, 852 F.3d 1018 (11th Cir. 2016).

Chastity Jones applied for a customer service position with an insurance claims company in Alabama.

She was selected for employment.

Then the company informed her that its grooming policy did not permit locs.

Jones refused to cut them.

The company withdrew the offer.

The Equal Employment Opportunity Commission sued, alleging unlawful race discrimination under Title VII.

The Eleventh Circuit affirmed dismissal of the agency's proposed claim, relying on existing precedent distinguishing immutable racial characteristics from changeable hairstyles.

The court concluded that the complaint, as framed under that precedent, did not establish intentional race discrimination merely because the employer prohibited locs under a race-neutral grooming policy.

The decision did not mean all discrimination involving locs is lawful.

Different facts may support different claims, including discriminatory enforcement, racial harassment, or other theories.

And statutes may provide protections beyond what the court recognized under the federal law as it interpreted it.

But the case exposed a serious problem in the judicial approach.

A person's racial identity is not reducible to a list of biological characteristics that cannot be changed.

Culture is lived.

It includes practices, traditions, language, grooming, and expression.

When courts treat culturally significant practices as legally irrelevant because they can technically be altered, employers gain considerable discretion to demand assimilation.

The employee receives a choice.

Change the hair.

Or lose the opportunity.

Courts may call that choice neutral.

The person living with its consequences may reasonably disagree.

X. The CROWN Act: Legislative Correction to Judicial Narrowness

When courts interpret a statute narrowly, legislators can amend the law.

That is precisely what advocates sought through the CROWN Act movement.

The legislation addresses discrimination involving hair texture and protective hairstyles associated with race.

Illinois enacted its version through Public Act 102-1102, effective January 1, 2023.

The measure amended the Illinois Human Rights Act to include traits associated with race, including hair texture and protective hairstyles, within the state's protections.

For Chicago employers, that matters.

Federal Title VII cases do not describe the entire legal landscape when state law supplies additional protection.

A Chicago worker challenging discrimination involving protective hairstyles may have legal arguments under Illinois law even where federal precedent creates difficulties.

That is how federalism can operate constructively.

Federal law establishes one layer.

States may provide additional protections.

Congress has also considered federal CROWN Act legislation, but the proposal passed by the House in 2022 did not become federal law in that Congress.

The distinction is important because readers should not be told that proposed protections already operate nationwide.

As for the law's moral purpose, the argument is straightforward.

An employer should not be able to penalize a worker for a hairstyle associated with racial identity merely by describing the issue as grooming.

A neutral-sounding personnel policy should not receive automatic immunity from scrutiny.

Professionalism is supposed to measure conduct, competence, and performance.

It should not operate as a disguised referendum on cultural conformity.

Apparently, the federal courts required several decades to appreciate that possibility.

Legislatures have begun supplying the missing instruction.

XI. Dapper Dan: The Designer Who Was Too Early to Be Fashionable

Our next witness comes from Harlem.

That is where Daniel Day, known professionally as Dapper Dan, developed an influential approach to luxury streetwear during the 1980s.

His boutique became known for custom garments using conspicuous luxury logos and silhouettes designed around the tastes of hip-hop performers, athletes, and other clients.

The results were unmistakable.

Luxury branding moved into an environment that established fashion houses had largely ignored.

Oversized jackets.

Custom tracksuits.

Fur.

Leather.

Highly visible monograms.

Bold proportions.

Clothing designed for clients whose presence had not been centered by traditional luxury fashion.

But the legal problem was real.

Dapper Dan used trademarked luxury designs without authorization.

The companies possessed legitimate intellectual-property claims.

Trademark rights do not disappear because the alleged infringer is culturally innovative.

The resulting legal pressure contributed to the closure of his boutique in 1992.

That legal history makes the later irony more interesting, not less.

In 2017, Gucci displayed a jacket that closely resembled a Dapper Dan design previously made for Olympic sprinter Diane Dixon.

The resemblance produced public controversy.

Gucci acknowledged the reference, describing the piece as an homage.

The company subsequently entered into a collaboration with Dapper Dan and helped establish a new Harlem atelier.

There are two ways to read this history.

One is a story of reconciliation and recognition.

Another is the story of an innovator whose commercial influence became acceptable to the establishment after the establishment found a profitable way to incorporate it.

Both interpretations deserve consideration.

The legal distinction is equally important.

Dapper Dan's unauthorized use of protected trademarks and Gucci's borrowing of an overall garment concept were not necessarily identical legal acts.

Trademark law protects source identification and guards against certain forms of confusion.

Copyright protection for clothing is more limited because garments are useful articles.

But legality does not settle the entire question of attribution or fairness.

An act can be lawful and still reveal an inequitable commercial relationship.

A designer can possess a valid trademark claim and still benefit from the creative innovations of the person he sued.

The law tells us who owns the mark.

It does not always tell us who created the fashion movement.

XII. On Davis v. The Gap: When the Artist Sends an Invoice

Another case provides a more encouraging example.

On Davis v. The Gap, Inc., 246 F.3d 152 (2d Cir. 2001).

On Davis created distinctive nonfunctional eyewear worn as artistic jewelry.

The Gap used a photograph showing his copyrighted design in a national advertising campaign without obtaining his permission.

Davis sued for copyright infringement.

The district court rejected his claims for actual damages, in part because it viewed the proposed licensing value as insufficiently supported.

The Second Circuit disagreed.

The appellate court held that actual damages under the Copyright Act can, in appropriate circumstances, include the fair market value of the license that should have been obtained.

That ruling is important.

It recognizes that unauthorized commercial use can deprive a creator of compensation even when calculating the precise financial loss is difficult.

Davis did not automatically receive the enormous licensing amount he initially requested.

A plaintiff still needs evidence supporting a reasonable valuation.

The court found that he had supplied enough evidence to avoid dismissal of the actual-damages claim.

That is the law behaving sensibly.

If a corporation wants to use an artist's work to make its advertisement more attractive, obtaining permission and negotiating compensation should not be considered an exotic business procedure.

The court did not hold that every culturally inspired design requires payment.

It held that copyright rights must be respected when protected expression is actually used.

That distinction matters.

Culture is shared. Copyright protects particular original expression.

Confusing those propositions creates bad law.

Ignoring either creates opportunities for exploitation.

XIII. The Sound of Ownership: From Rock and Roll to Sampling

I have spent enough time listening to music to know that influence is rarely clean.

An artist hears a phrase.

A rhythm settles into memory.

A horn arrangement suggests another arrangement.

A blues progression reappears in a new recording.

Music travels.

It always has.

But the legal treatment of musical borrowing has changed dramatically with recording technology.

American copyright law distinguishes between a musical composition and a sound recording.

A composition protects the underlying musical work.

A sound recording protects the particular recorded performance.

The difference matters because recreating a melody and directly copying a sample from an existing recording raise different legal issues.

For decades, Black American musicians faced exploitative recording contracts, questionable publishing arrangements, and unequal access to commercial distribution.

Those problems did not arise simply because copyright law existed.

They arose partly because ownership and bargaining power were unequally distributed.

Then hip-hop developed a creative language heavily dependent upon recorded sound.

Producers sampled fragments of earlier recordings.

Drum breaks.

Bass lines.

Horn phrases.

Spoken words.

A brief recording became an element of a new composition.

The question was whether, and when, the copyright owner had to authorize that use.

In Grand Upright Music, Ltd. v. Warner Bros. Records Inc., 780 F. Supp. 182 (S.D.N.Y. 1991), the court considered Biz Markie's unauthorized use of material from Gilbert O'Sullivan's song Alone Again (Naturally).

The court granted a preliminary injunction and referred the matter to federal prosecutors for possible consideration of criminal copyright charges.

Judge Kevin Thomas Duffy began his opinion with a biblical prohibition against stealing.

One could hardly miss the moral tone.

The underlying infringement dispute was legitimate.

But the opinion became famous partly because of the severity of its language and the practical impact on sampling.

The result was a warning to an emerging musical culture.

Obtain licenses.

Or invite litigation.

The next major development made that warning even sharper.

XIV. Bridgeport and the Two Seconds That Changed Hip-Hop

Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005), involved a small digital sample from a Funkadelic recording used in N.W.A.'s 100 Miles and Runnin'.

The sample was brief.

It had been altered.

The district court concluded that the copying was too insignificant to constitute actionable infringement.

The Sixth Circuit reversed.

It held that the ordinary de minimis defense did not apply to unauthorized digital sampling of protected sound recordings.

In plain language, the court adopted an extremely strict position.

Even a tiny digital sample could require authorization.

That rule substantially increased the legal importance of licensing.

For sample-based music, clearance could become expensive and complicated.

Those costs can favor producers and labels with significant financial resources.

But the legal landscape did not remain uniform.

In VMG Salsoul, LLC v. Ciccone, 824 F.3d 871 (9th Cir. 2016), the Ninth Circuit considered an extremely brief horn sample allegedly used in Madonna's Vogue.

The court rejected the Sixth Circuit's position.

It held that de minimis copying could remain a defense in sound-recording infringement cases.

The Ninth Circuit reasoned that the law did not justify abolishing that doctrine for every digital fragment.

The result was a genuine disagreement between federal appellate courts.

That is legally important.

The Sixth Circuit and Ninth Circuit interpreted the relevant copyright provisions differently.

It is tempting to describe the disagreement as one court punishing Black American music while another protected a white performer.

That interpretation is rhetorically attractive.

It is not a complete description of the legal issue.

The cases involved different parties, different samples, different records, and courts operating under different interpretations of federal law.

The broader concern remains valid.

When a cultural form depends on assembling fragments of recorded history, a licensing system can impose costs that affect who can afford to participate.

A wealthy studio can employ licensing specialists.

A young producer working from a bedroom may not have the same resources.

That disparity deserves attention regardless of the race of any particular litigant.

The law should protect creators without unnecessarily making new creation dependent on inherited wealth.

That is a difficult balance.

It deserves better than slogans.

XV. When America Borrows the Voice

A different kind of cultural appropriation happens without touching a copyrighted recording.

It happens through language.

Black American Vernacular English is a systematic, rule-governed variety of English with a long linguistic history.

Its grammatical structures are not random mistakes.

Its vocabulary is not evidence of intellectual deficiency.

Its pronunciations and patterns are not merely defective versions of some supposedly superior form of English.

Linguists have established these points for decades.

Yet the social judgments attached to language remain deeply uneven.

A comedian may borrow Black American speech patterns to appear amusing.

An advertising campaign may adopt familiar expressions to seem contemporary.

A performer may imitate particular rhythms of speech to establish a commercial persona.

Meanwhile, a Black American job applicant may encounter negative judgments for speaking in a similar register during an interview.

The contrast is not that outsiders should never adopt expressions from another community.

Language naturally travels.

The contrast is between commercial approval and institutional punishment.

Sociolinguist John Baugh used the term linguistic profiling to describe discrimination associated with socially perceived identity conveyed through speech.

His research included experiments examining how spoken language influenced responses in housing-related interactions.

Speech can prompt listeners to assign social categories.

But those assignments remain perceptions.

They are not genealogical proof.

A blind lawyer should understand that distinction particularly well.

I can detect patterns in pronunciation.

I can recognize familiar voices.

I can sometimes identify where someone learned to speak.

But I cannot hear ancestry with scientific certainty.

That is why the clerk's beads should never have been treated as evidence of lineage.

And that is why the next case troubles me.

XVI. Clifford: When a Voice Became Racial Evidence

In Clifford v. Chandler, 333 F.3d 724 (6th Cir. 2003), a federal appellate court reviewed a criminal conviction involving testimony about the perceived race of a speaker.

The underlying prosecution concerned a drug transaction.

An officer monitored an audio transmission from another officer who was conducting an investigation.

The monitoring officer testified that one of the voices sounded like that of a Black male.

The defendant, Charles Clifford, challenged the admission of that testimony.

The Sixth Circuit rejected his federal habeas challenge.

The court concluded that the state court's decision was not contrary to clearly established Supreme Court precedent.

It also rejected the argument that all testimony identifying perceived race from a voice must automatically violate due process.

The ruling did not establish that a witness can reliably determine someone's ancestry through sound.

Rather, it addressed whether such testimony was constitutionally inadmissible in the circumstances presented.

The distinction matters.

There is a considerable difference between saying a voice sounds culturally or socially associated with a particular group and saying the speaker belongs to a specific lineage.

The first may describe a perception.

The second asserts a fact about identity.

They are not interchangeable.

The decision illustrates a recurring problem in evidentiary law.

Courts sometimes permit juries to hear perceptions that require careful treatment because those perceptions may carry racial stereotypes.

Such evidence should not be accepted uncritically simply because the witness claims confidence.

A person's manner of speaking may provide clues about experience, community, education, and regional influence.

It cannot by itself establish a complete racial genealogy.

If the law cannot make that distinction, prejudice acquires the respectable appearance of expert certainty.

And once prejudice gets dressed for court, it has a disturbing tendency to be admitted into evidence.

XVII. Ferrill: The Employer Who Divided Voices by Race

Ferrill v. Parker Group, Inc., 168 F.3d 468 (11th Cir. 1999), illustrates a different problem.

The Parker Group operated telephone marketing campaigns, including political voter-contact work.

For some projects, it assigned callers and scripts according to race.

Black employees used one script.

White employees used another.

Workers were also separated into different calling areas.

Shirley Ferrill challenged the practice.

The Eleventh Circuit upheld liability for intentionally discriminatory job assignments under 42 U.S.C. section 1981.

The court explained that an employer does not avoid liability merely by asserting that its race-based decisions were commercially useful rather than motivated by hatred.

That is an important legal principle.

A business may believe race-based staffing improves customer response.

It may consider the practice efficient.

It may even believe customers prefer it.

But commercial convenience is not a universal defense to intentional race discrimination.

Notice the contradiction.

Black American speech can become valuable as a marketing tool.

But the worker speaking it may be assigned duties according to racial assumptions.

The company wants the commercial benefit of the voice.

The employee bears the racial classification.

That is precisely the kind of institutional arrangement Nancy Leong's scholarship encourages us to examine.

The company extracts value from perceived racial identity.

The worker loses equal treatment.

The harm is not cured by good manners.

XVIII. When the Machines Cannot Understand the People

The problem continues in speech-recognition technology.

In 2020, Allison Koenecke and colleagues published a study in the Proceedings of the National Academy of Sciences examining racial disparities in commercial speech-to-text systems.

The researchers evaluated products developed by five major technology companies using recorded interviews with Black and white speakers.

Across the systems tested, the average word error rate was approximately 35 percent for Black speakers compared with 19 percent for white speakers.

Those figures concerned the systems and data examined in 2020. They should not be treated as current performance measurements for every product.

But the result was significant.

Speech-recognition systems were making substantially more errors with speech from Black participants.

That matters beyond convenience.

Consider legal transcription.

Medical intake.

Customer service.

Employment screening.

Accessibility.

A mistaken word can change meaning.

A missed negative can reverse a statement.

A mistranscribed address can send someone to the wrong location.

If a speech-recognition system consistently performs worse for a group whose linguistic patterns were underrepresented in its development, the technology may reproduce an existing social disadvantage.

There is an especially bitter irony here.

Black American linguistic expression can become immensely valuable in marketing and entertainment.

Yet the systems responsible for understanding ordinary speech may still perform less reliably for some of the people whose language influences the culture.

America enjoys the sound.

The machine misses the words.

That is not merely a cultural problem.

In certain contexts, it can become an accessibility, consumer-protection, employment, or civil-rights issue.

XIX. The Renegade: Who Gets Credit for the Dance?

Cultural borrowing becomes even more complicated when platforms reward attention.

In 2019, fourteen-year-old Jalaiah Harmon created the dance that became widely known as the Renegade.

She posted her choreography online.

The dance spread.

Other creators performed it.

Some became widely associated with its popularity.

Harmon initially received far less recognition than the creators whose performances circulated most widely.

Eventually, reporting and public attention helped establish her authorship in the public record.

This history is important, but accuracy requires care.

The fact that another performer helped popularize Harmon's choreography does not prove that every participant knowingly intended to steal credit.

Some people learned the routine through intermediate creators.

Others may not have known the original source.

The system itself made attribution difficult.

But that does not eliminate the problem.

The originator may remain invisible while the performance becomes valuable.

A video platform can rapidly detach creative work from the person who first made it.

The consumer remembers the person who appeared on the largest account.

The creator becomes a footnote.

In 2021, Black creators participated in a widely discussed strike against making new dance routines for particular popular music releases, protesting recurring failures of credit and recognition.

Their protest raised a straightforward economic question.

If the culture supplies the material that sustains attention, why should the people producing that material struggle to receive recognition and compensation?

Survey research by MSL and The Influencer League reported a 35 percent pay gap between Black and white influencers in the study's sample.

That finding should not be misrepresented as a controlled measurement proving identical creators always receive precisely 35 percent different compensation.

The study was an industry survey, not a universal wage census.

Nevertheless, it provided evidence that creators perceived and experienced substantial inequalities in influencer compensation.

The larger issue is attribution.

Who creates?

Who distributes?

Who becomes recognizable?

Who negotiates with advertisers?

Who gets paid?

Copyright law answers some of these questions.

Platform economics answers others.

And sometimes the answer is simply that a person with a larger audience receives the reward.

Popularity is not the same as authorship.

America has confused the two before.

Ask the musicians.

XX. Fortnite and the Limits of Copyright Protection

The problem becomes legally sharper when choreography enters a commercial product.

Several performers challenged the use of dances in the video game Fortnite.

The game's purchasable dance animations, called emotes, raised questions about copying, copyright protection, and commercial appropriation.

A familiar difficulty appeared.

Federal copyright law protects original choreographic works.

But not every individual dance step or simple social routine receives copyright protection.

The Copyright Office distinguishes protected choreography from ordinary social dances and short, common movements.

That boundary matters.

No one should own the basic act of moving a shoulder or stepping sideways.

But a substantial, original sequence of choreographed movement can represent protectable expression.

In Hanagami v. Epic Games, Inc., 85 F.4th 931 (9th Cir. 2023), choreographer Kyle Hanagami alleged that Epic Games copied part of his registered choreography.

The district court dismissed his infringement claim.

The Ninth Circuit reversed.

The appellate court concluded that the lower court had improperly dissected the choreography and failed to evaluate the alleged similarities in the selection and arrangement of movement.

The Ninth Circuit did not declare Hanagami the final winner of the infringement dispute.

It allowed the claim to proceed under a more appropriate legal analysis.

That distinction is important.

A reversal of dismissal is not a final infringement judgment.

But the opinion recognized that choreography should not be reduced to isolated static poses when its original expression lies in movement, sequence, timing, and arrangement.

The decision provides a meaningful framework for evaluating creative claims involving dance.

It also illustrates how copyright law can struggle to protect new artistic practices within old categories.

The challenge is not simply to protect every dance.

That would be absurd.

The challenge is to distinguish common movement from original choreographic expression and to apply the distinction consistently.

A creator should not lose protection merely because the work emerged from popular culture rather than a traditional theater.

The law should not require an orchestra pit before it recognizes creativity.

XXI. Identity Fraud: The Difference Between Participation and Impersonation

Cultural participation is one thing.

Falsely claiming a racial or genealogical identity is another.

Several public controversies have involved individuals who represented themselves as belonging to Black communities despite family histories that contradicted those representations.

Rachel Dolezal became a prominent example in 2015 when her claimed identity and family background attracted national scrutiny.

Jessica Krug, a professor who had represented herself as having Black and Afro-Latin ancestry, publicly acknowledged in 2020 that those claims were false.

These cases raised serious questions concerning academic authority, professional opportunity, and representation.

But we should be careful about the legal categories.

Not every disputed personal identity claim is a criminal offense.

A false statement becomes legally actionable when it satisfies the requirements of a particular law, such as fraud, false certification, or misrepresentation in an official proceeding.

Dolezal's later welfare-fraud case involved allegations concerning undisclosed income and public benefits.

It should not be casually described as a criminal conviction for claiming Black identity.

That would conflate distinct conduct.

The deeper ethical problem is the appropriation of lived authority.

A person may borrow cultural expressions without claiming ancestral membership.

But when someone falsely claims a lineage to obtain opportunities, credibility, or resources specifically connected to that lineage, the issue becomes more consequential.

There is a difference between participating in culture and fabricating the personal history that gives an individual a particular standing within it.

That distinction also deserves respect for an important reason.

Black American identity is not determined by whether a person visually matches someone else's expectations.

A light-skinned Black American does not become less connected to Black American ancestry because a stranger assumes otherwise.

A dark-skinned person from a different ancestry does not automatically share the same genealogical history.

Identity cannot be responsibly reduced to appearance.

The law's concern should be material misrepresentation and discriminatory conduct, not enforcing racial stereotypes through visual inspection.

XXII. Chicago's Contracting Fraud: When Diversity Becomes a Financial Instrument

There is a more concrete form of institutional exploitation.

Government contracting.

Public procurement programs have historically sought to expand opportunities for businesses excluded from markets through discrimination.

Some programs use certifications involving ownership, control, social disadvantage, or economic disadvantage.

The precise eligibility requirements vary by program and legal authority.

The central requirement is that the certified business must actually satisfy those requirements.

That should be obvious.

Apparently, it has not always been obvious to everyone receiving the contracts.

In United States v. Leahy, 464 F.3d 773 (7th Cir. 2006), the Seventh Circuit reviewed criminal convictions associated with schemes involving Chicago contracting programs.

The litigation grew from fraudulent arrangements designed to obtain benefits associated with minority-owned and women-owned business participation.

The court affirmed significant aspects of the convictions while resolving a number of issues concerning the various defendants.

The case demonstrates how public procurement programs can be exploited through sham business arrangements and false representations.

The practical harm goes beyond an inaccurate form.

A legitimate business may lose an opportunity.

Public funds may be diverted.

Government reports may inaccurately reflect who actually performed the work.

And the apparent success of a remedial contracting program becomes difficult to evaluate.

The offense is not that a company wants a government contract.

The offense is obtaining one through deception.

This distinction is important because fraudulent participation can undermine public confidence in legitimate businesses that have complied with certification requirements.

A program designed to broaden opportunity should not become an accounting device for disguising who controls the contract and receives its financial benefit.

The legal principle is straightforward.

If a government contract requires particular qualifications, falsely certifying those qualifications can create serious civil or criminal exposure.

The lesson for cultural extraction is equally straightforward.

There is a difference between genuine participation and merely purchasing the appearance of participation.

That distinction applies in a fashion advertisement.

It applies in a corporate diversity campaign.

And it applies to a construction subcontract worth millions.

The scale changes.

The underlying ethical question does not.

XXIII. The Case for Cultural Exchange

A serious analysis should acknowledge an opposing argument.

Cultures develop through exchange.

Music travels.

Language changes.

Food migrates.

Artists borrow techniques.

Designers reinterpret familiar forms.

No living culture remains perfectly sealed from outside influence.

Philosopher Kwame Anthony Appiah has argued against treating cultures as isolated possessions that must remain uncontaminated by exchange.

His essay The Case for Contamination emphasizes the productive possibilities of cultural interaction.

The point is important.

An argument demanding that only members of a particular ancestry may wear certain clothing, perform certain music, or speak certain expressions would create its own serious problems.

It could restrict individual freedom.

It could discourage collaboration.

It could turn culture into a rigid system of inherited permissions.

That would be an unfortunate destination for a discussion supposedly concerned with equality.

Cultural exchange is not inherently harmful.

A white musician can learn from Black American musical traditions and create meaningful work.

A Black American designer can study European tailoring.

A chef can adopt ingredients and techniques from distant communities.

Human creativity thrives on these interactions.

The existence of borrowing does not prove exploitation.

But Appiah's argument does not eliminate the importance of power.

Exchange may be lawful and still occur under unequal commercial conditions.

A corporation may borrow an idea while refusing to credit the person who developed it.

An employer may celebrate a hairstyle in advertising while penalizing its own workforce for wearing the style.

A digital platform may profit from a creator's work without providing effective attribution.

Those problems do not require cultural isolation as a solution.

They require fairness.

Attribution.

Equal treatment.

Honest contracts.

Effective remedies for protected creative expression.

And a willingness to recognize the people whose work makes the exchange possible.

It is possible to oppose exploitation without declaring culture private property.

It is possible to value historical origin without imposing racial ownership over every expression.

That is where a defensible legal position should begin.

XXIV. What the Law Can Actually Do

We should distinguish legal injury from cultural disagreement.

Someone wearing braids is not automatically committing a civil wrong.

Someone adopting a speaking style does not automatically violate copyright.

A fashion designer drawing inspiration from a cultural tradition does not necessarily infringe a legally protected design.

And a corporation referencing popular culture does not automatically owe damages to everyone who contributed to its development.

The law cannot sensibly provide exclusive ownership of all cultural influence.

Nor should it.

But the law can address particular injuries.

Employment discrimination can be challenged under applicable federal, state, and local civil-rights laws.

Copyright can protect original expression within the scope established by federal law.

Trademark law can protect source identification and guard against actionable confusion.

Contract law can enforce licensing and payment agreements.

Fraud statutes can address material deception in public contracting.

Consumer-protection and product-liability law can address unlawful marketing and proven product-related injuries.

Civil-rights law can prohibit certain forms of race-based employment treatment.

Those are distinct legal tools.

They should not be thrown together under one emotional accusation.

The effective advocate asks what happened, what law applies, what evidence supports the allegation, and what remedy the court has authority to provide.

That is less exciting than announcing that the entire economy is guilty.

It is also considerably more likely to survive a motion to dismiss.

Our legal vocabulary should reflect that discipline.

The current twelfth edition of Black's Law Dictionary, edited by Bryan A. Garner, remains an authoritative reference for distinguishing concepts such as infringement, fraud, discrimination, and damages.

These concepts overlap in the real world.

They are not interchangeable in court.

An accusation of cultural exploitation may be a valid moral criticism without constituting a statutory cause of action.

A lawful act may nevertheless reveal unfair market arrangements.

And an unlawful act does not become permissible because the person committing it claims cultural admiration.

Keeping those distinctions clear is not a concession.

It is how serious arguments remain serious.

XXV. The Cost to Black American Identity

There is another consequence that legal opinions rarely describe adequately.

The psychological cost of being told that your culture is valuable while your presence is negotiable.

Imagine growing up in a community whose music shapes popular entertainment.

Whose language circulates through advertising.

Whose clothing influences global fashion.

Whose hairstyles appear on runways.

Whose creative movements fill social platforms.

Then imagine being repeatedly told that those same cultural expressions are unacceptable when you enter a school, apply for a position, or seek advancement.

That contradiction can produce pressure to divide the self.

Professional identity over here.

Cultural identity somewhere else.

The language of home before the interview.

A different voice during the interview.

The hairstyle you prefer on the weekend.

Another hairstyle at the office.

The body you inherited.

The version of it you have been taught to consider acceptable.

Not every Black American experiences these pressures identically.

Black American communities contain differences of class, generation, complexion, religion, region, and political outlook.

Some people reject particular cultural traditions.

Others embrace them.

Some choose protective hairstyles for convenience rather than cultural symbolism.

Some wear their hair straight because they prefer it.

There is no single mandatory Black American aesthetic.

That is precisely why individual choice matters.

The problem occurs when choice is shaped by discriminatory consequences.

A woman deciding to straighten her hair because she prefers the appearance is exercising personal autonomy.

A woman doing so because her employer suggests that her natural or protective style is unprofessional faces a materially different situation.

The hairstyle may be identical.

The freedom surrounding the choice is not.

And law should care about that distinction.

XXVI. The Verdict of the Senses

Late in the afternoon, the office begins to quiet.

A chair rolls across the floor outside my door.

Somebody closes a filing cabinet.

The elevators open and close.

Then I hear the beads again.

Our clerk is leaving.

Their small clicking rhythm travels down the corridor.

I return my fingers to the Braille display.

The case on the screen concerns a woman who believes her appearance became a barrier to employment.

That is the contrast I cannot shake.

Our clerk's braids have become a pleasant office conversation.

For someone else, a similar hairstyle became a legal dispute.

That difference tells me nothing conclusive about our clerk's intentions.

She did not write the grooming policies.

She did not decide Rogers.

She did not create the circumstances surrounding Catastrophe Management Solutions.

And there is no reason to burden a young legal professional with responsibility for every historical injustice associated with a hairstyle she enjoys.

My concern is with the institutions.

The employers.

The courts.

The corporations.

The commercial gatekeepers.

The structures that decide whose cultural expression looks professional, whose creative work commands compensation, and whose identity becomes profitable only after another person performs it.

America has demonstrated a remarkable ability to identify value in Black American creativity.

It has been less consistent about protecting the people responsible for that value.

The historical record provides the evidence.

Minstrelsy converted racial caricature into entertainment.

Publishing and recording arrangements often separated musicians from ownership.

Fashion institutions alternately resisted and adopted Black American design.

Courts struggled with whether culturally significant hairstyles deserved statutory protection.

Copyright doctrine developed uneven rules concerning sampling and choreography.

Digital platforms amplified works while sometimes obscuring their creators.

And businesses discovered that racial identity could become a commercial asset, sometimes through legitimate association and sometimes through outright deception.

Not all these practices are unlawful.

Not all result from identical motives.

But together they reveal a recurring institutional problem.

Black American culture can become commercially valuable without Black American people receiving equal treatment, attribution, or compensation.

The answer is not to forbid other people from enjoying the culture.

The answer is to stop treating cultural appreciation as proof that discrimination has disappeared.

Admiration is not equality.

Consumption is not solidarity.

Imitation is not compensation.

And fashionable acceptance is not the same thing as institutional justice.

The law must distinguish them.

I rest my hands on the desk.

A few floors below, somebody sounds a horn against Chicago traffic.

Another car answers.

A conversation between people who apparently believe noise establishes legal priority.

I have heard worse arguments.

I return to the case.

The Braille pins shift beneath my fingers.

And I think of something the American legal system should have learned a long time ago.

A culture should not have to become fashionable in someone else's hands before the people who created it are treated with dignity.

If America wants the music, it should respect the musicians.

If it wants the designs, it should recognize the designers.

If it wants the language, it should not punish the speakers.

And if it finds a hairstyle beautiful, perhaps it should reconsider why that hairstyle ever became evidence of unprofessional conduct.

The beads have stopped clicking.

Our clerk has gone home.

Tomorrow morning, they will return.

And somewhere else in this country, another employee may be asked to change her hair before being allowed to represent a company that already profits from the culture associated with it.

I know what that sounds like.

It sounds like a contradiction.

And contradictions, ladies and gentlemen, are what lawyers are supposed to examine.

From the desk of Murdock, Esq.