Me – I talked about my forthcoming piece My Fair Ladies: Sex, Gender, and Transformative Use, and the pornographer as the most favored creator in copyright law – he is able to appropriate other works and have that appropriation understood as transformative fair use, but also able to monetize any use and therefore to show market harm any time another actor (like Google) copies his work. In the pornographer’s market, nothing is unreasonable or unlikely to be developed. Of course pornographers will license 100-pixel images. Any variety or excerpt of sex is sex and carries with it the market value of sex. So, Perfect 10 convinces the district court that its case isn’t a replay of Kelly and gets rights against Google that a landscape photographer doesn’t have. In my view, this is a mistake.
What is a feminist/low-protectionist to do? First, recognize that lots of things can count as transformative or otherwise favored uses under the first fair use factor, rather than privileging sexualization. Second, harden our normative definitions of allowable markets for everyone, rather than accepting circular claims that licensability defines market harm.
Mary LaFrance, UNLV Law School, Working and Playing Well: Gender, Status and Culture in Collaborative Works
Anecdote: because LaFrance didn’t intend to stay at a law firm, she was able to refuse a request that she write an article for a partner without getting coauthorship credit. Most people wouldn’t have been in a position to refuse that. As coauthor of a casebook, it’s always a struggle to refuse to be drawn into a caregiving position and to assert that her interests have to be respected and considered as well.
IP law is not well positioned to acknowledge the collaborative and derivative nature of most works. Often, there isn’t one person who deserves full credit for any invention or work. Nonetheless, as a practical matter, we need to assign economic rewards to the person/people we’re most excited about incentivizing. So, how does the system decide this?
Within this incentive-based system, authors and inventors might be misidentified, influenced by inaccurate perceptions of their contributions based on stereotypes and behaviors related to gender, culture and status. Federal court opinions addressing claims of inventorship and authorship show this – she hasn’t looked at works for hire, but power differences obviously exist there too (as with her experience with the partner who wanted an article written in his name).
She found greater bias in the copyright system than in the patent system. People who are more diffident – which is affected by gender and culture – are more likely to be left out of an authorship determination because they don’t assert their claims in the terms required. If the test is that each person must perceive the other as an author, then one’s perception that the other is a mere assistant would defeat a joint authorship claim. This test has become popular in the courts – the 9th Circuit describes putative joint authors as “claimjumpers,” conjuring images of grizzled miners staking their claims and threatening violence against interlopers. The worst of these cases, in her opinion, is the Rent case where the dramaturg doesn’t get any authorship rights despite her huge contributions because Larson’s perception that he was the sole author – his ego – determined the outcome of the case.
Contrast that to a patent case where a doctor worked with an electrical technician who didn’t have a college degree. Both were Korean, from a culture that demands a high degree of deference to persons of higher status; the technician’s interactions with the doctor were extremely deferential, and yet the Federal Circuit went to great trouble to identify his contributions to 2 of the 55 patent claims. Thus, he was the joint owner of the entire patent. The patent became unenforceable against an infringer. The patent system focuses more objectively on the contributions of the parties and not on the way they express their contributions to one another. The technician would never have asserted his rights without the infringer’s work tracking him down and financing his challenge. So the hurdles are still there in patent law. If more technicians come forward, will the patent rule shift and start to show more copyright-like bias against claimjumpers?
Another question: If we switch to first to file, will that make patent law less equitable in its ability to reward true inventors?
Christine Haight Farley, American University, Washington College of Law, The Feminine Mystique of Brands
Today, brands are feminine in trademark law. We’re in an expansionist era in trademark law, which is connected to the feminization of brands – the law runs to their aid, to give them protection. Brands were said to be “vulnerable,” attracting the attentions of bad actors, becoming prey to their advances; and when the brands had been used by those bad actors, they were damaged. Thus, a moral imperative to act against dilution.
This kind of protection comes with a lot of costs – speech interests, competition – so you need a good reason to outweigh those costs. In traditional trademark law, protecting consumers is that good reason. Confusion serves to limit the scope of the right. Dilution is difficult to prove. So what is the injury of dilution? “Association” arising from similarity that impairs the distinctiveness of the famous mark. How do we prove or measure impairment? We can’t. So trademark owners would like us to presume it will happen when someone else uses a famous mark.
We’re protecting the brand, not the consumer. It’s a reputational interest, like defamation. In traditional defamation law, impugning a woman’s chastity was defamation per se, with no need to show damage – because women’s reputation was valuable property (of men, not of the women itself) and harm to that reputation couldn’t be measured in the marketplace. Their harms were relational and associational – they might lose social connections or marriage proposals if their reputations were harmed. Also, women would naturally and inevitably be harmed by implications of nonchastity, so there was no need to prove harm in a particular case.
The logic here is similar – brands are very valuable, but also very vulnerable. Brands aren’t Victorian prudes; they flirt with the line between accessibility and inaccessibility, edginess and comfort.
The easiest path to success in a tarnishment claim has been something like sexual slander, something that sexualizes the mark. The Victor’s Little Secret case is an example of that, even though it went down on blurring grounds. Even sexy Victoria’s Secret can be tarnished by association with sex toys/lewd mugs/other trashy sexy stuff. Likewise, Barbie and the Dallas Cowboys Cheerleaders are vulnerable to sexual tarnishment. Most recently: Breast: The Other White Milk got a C&D from the pork industry.
This feminization of brands in the law may not be deliberate; marketers know quite well how to gender individual brands (Marlboro, Betty Crocker, Brawny). In any event, it works. Feminizing the brand helps brand managers/trademark lawyers put brands on a pedestal, out of reach of anyone but the owner (like a wife reserved to her husband).
Question from Ann Bartow: Tension between Tushnet and Farley – in copyright, sexualization helps the defendant, but in trademark it leaves the defendant open to a tarnishment claim. I think this is true, but we don’t know how the new trademark law and its exceptions will shake out – maybe a lot of these things will be deemed outside trademark owners’ rights.
Pollack: Men own women in two different ways – the pimp who owns and exploits his property’s sexuality in the marketplace, or the respectable man who has the woman on his arm who is valued for her purity, which is to say the fact that she is reserved to him. The tension in copyright/trademark is what kind of relationship owners will have to their property.
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