74 Am. U. L. Rev. F. 243 (2025).

Abstract

Celebrated Cuban writer and musicologist Alejo Carpentier may have been the first to make the somewhat cryptic pronouncement that “writing about music is like dancing about architecture,” a maxim meant to acknowledge the apparent incongruity of two different artistic media and the evident futility of expressing some ideas in mere words. Likewise, both trademark law and popular culture elude easy description and defy conventional explanation; but, unlike dancing and architecture, they exert an inexorable pull on one another, one which demands a timely exploration and development in the law. This Essay argues that trademark names and logos that derive from minority and indigenous cultures, including Native American and Black communities, that have made it into the popular culture should be considered items of intangible cultural property and entitled to the same protection that is currently afforded to other items that are culturally significant. Trademark law should adhere to more traditional property means, such as those that govern physical property. Intellectual property owned by private persons should involve the same in rem or “bundle of sticks” approach, allowing for competing considerations to the ostensibly unequivocal right to exclude by property owners, and the conferral of potential quasi-ownership interests to third parties. The traditional protections accorded to third parties where tangible property is concerned acknowledge that ownership is not absolute and is subject to human needs and values. To this day, typical intellectual property analysis does not seem to fully acknowledge this reality. There do not seem to be strong legal reasons, at least not rooted in traditional property law, to avoid situating intangible items of property within the same regime, which may make intellectual property, particularly trademark, more subject to societal concerns. And there are compelling cultural reasons to do so. Accordingly, this Essay argues that popular culture deserves a more comprehensive designation of cultural property, and that the considerable power and discretion that trademark holders wield in the use of their marks should yield to the owners of this cultural property. And the best way to do this is by treating trademarks in the same way we do tangible property, especially real property.

* Assistant Professor of Law, South Texas College of Law, Houston: Judge Pro Tempore, for Justice Court, Clark County, Las Vegas Township, Nevada; and whose beloved paternal grandmother, Catherine Reid, was the descendant of Black Cherokee freedmen. Many thanks to Lisa Bernstein of the University of Chicago Law School for helpfully reading an early draft of this Essay, and the faculty at DePaul Law School for providing encouraging feedback on a presentation of this work as part of the Faculty Scholarly Exchange between its law school and that of Northern Illinois University College of Law (the Author’s previous law school appointment). Finally, special thanks go to the wonderfully ingenious and dedicated editors of the American University Law Review Forum.