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Say that an individual were a slave in the United States before the passage of the 13th Amendment to the US Constitution, abolishing slavery. Could such a slave own intellectual property over things they created (let's assume it was of their own volition and not as a request of their owner)?

For instance, would they own the copyright to a work of art that they created, or have the ability to patent an invention they made? If not, could their owner claim that ability? Or could they claim it after they had been freed?

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    I don't know for certain but I do not believe that slaves could own anything. Any copyright, patent rights, or the like, related to a slave's labor would no doubt belong to the owner.
    – phoog
    Jan 7, 2016 at 21:21
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    Joseph Holt, the Commissioner of Patents ruled in 1857 against a slave owner in a case where the owner was trying to obtain a patent for an invention of one of his slaves. Jan 7, 2016 at 21:57
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    According to the Dred Scott decision, a slave was property, not a person. So all your references to a person cannot apply.
    – Mohair
    Jan 7, 2016 at 22:17
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    @Thunderforge I held off putting that as an answer as I'm hoping someone will have a wider answer addressing other kinds of intellectual property beyond patents, and with better references. I figured it was a good hint to leave that others could use to find a better answer. Jan 7, 2016 at 22:22
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    @JasonAller's comment doesn't seem to answer your question as asked. In that case the court ruled that the owner couldn't obtain a patent for an invention of one of his slaves. It didn't rule that the slave could hold a patent. Mohair's point about Dred Scott is probably more on point. Slaves were held not to be protected by the constitution, so had no recourse to federal courts to pursue copyright or patent claims. Jan 7, 2016 at 22:22

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tl/dr; No, a slave could not own a patent because the laws of the United States did not recognize slaves as citizens. Since obtaining a patent required that applicants swear an oath of citizenship, enslaved persons could not apply for patents.

Accodring to H.E. Baker ("one of the most useful men in Washington", the Second Assistant Examiner at the Patent Office in the 1880s, valedictorian of his law class and postgraduate course, and a black man) in "The Negro as an Inventor":

In law, a patent is a contract between the government and the inventor or his assignees. The slave, although the inventor, could not under the law be a party to a contract, and therefore could not secure the patent himself.

Baker further states that the government had a theory that "a slave could not take out a patent for his invention". (p400).

Generally, slave owners could not patent inventions of their slaves. There were some exceptions made in the Confederacy's patent laws.

Below is a copy/paste of selections from "Invention of a Slave" by Frye:

The antebellum Patent Act was amended and rewritten several times. After 1793, it included a “Patent Oath,” which eventually required patent applicants to swear to be the “original” inventor of the claimed invention and to their country of citizenship.This oath effectively precluded slave owners from patenting the inventions of their slaves. Additionally, it limited patents to “citizens of the United States.

...

On June 10, 1858, the Attorney General issued an opinion titled Invention of a Slave, concluding that a slave owner could not patent a machine invented by his slave, because neither the slave owner nor his slave could take the required patent oath. The slave owner could not swear to be the inventor, and the slave could not take an oath at all. The Patent Office denied at least two patent applications filed by slave owners, one of which was filed by Senator Jefferson Davis of Mississippi, who later became the President of the Confederate States of America. But it also denied at least one patent application filed by a free African-American inventor, because African-Americans could not be citizens of the United States under Dred Scott.

...

Slave owners unsuccessfully tried to amend the Patent Act to enable slave owners to patent the inventions of their slaves, which the Patent Act of the Confederate States of America explicitly permitted. By contrast, abolitionists successfully convinced the Attorney General [in 1862] to issue an opinion concluding that free African-Americans were citizens of the United States, entitled to patent their inventions, among other things.

However, before Dred Scott, free African Americans could receive patents.

The first known [free] African-American inventor to receive a patent was Thomas Jennings, who patented a method of “dry scouring” clothing in 1821.

But there were also many enslaved antebellum African-American inventors who could not patent their inventions, or own property of any kind. Some slave owners probably surreptitiously patented the inventions of their slaves. At least apocryphally, Eli Whitney’s cotton gin was actually invented by a slave named Sam. Likewise, Cyrus McCormack’s mechanical reaper is often attributed to a slave named Jo Anderson


Some further reading: "Race and Selective Legal Memory: Reflections on Invention of a Slave" by Professor Kara W. Swanson, J.D, Ph.D.

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  • The first paragraph implies that citizenship of the US was required for someone to own copyright. That is certainly not the case now, and I doubt it was the case then. This would imply, for example, that immigrants would be unable to enjoy US copyright protection on their work, and that nonresident aliens would not be able to enjoy US copyright protection on their work even if it were published in the US. Copyright law is distinct from patent law.
    – phoog
    Jun 22, 2020 at 18:58
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    And indeed, the Copyright Act of 1790 extends copyright to non-citizen residents. So a finding that a slave is not a citizen should not be sufficient to deprive the slave of the benefits of copyright protection.
    – phoog
    Jun 22, 2020 at 19:03
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    @phoog My answer was limited to patent law, not copyright law. The 1790 Patent Act was limited to any person or persons. The 1793 Patent Act was limited to "Citizens of the United States". The 1800 Patent Act enabled non-US citizens to obtain patents, but part of that requirement was that they declare their citizenship. The 1836 patent Act repealed and replaced the 1793 Patent Act, kept citizenship requirements and est. the Patent Office. 1849 Patent Act moved the Patent Office to another department.
    – Andrew
    Jun 22, 2020 at 19:36

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