Wednesday, January 11, 2006

AALS Section on Law and Anthropology, part two

2006 AALS Meeting, Jan. 6
Section on Law and Anthropology
A Cultural Analysis of Intellectual Property

Sonia Katyal returned to discuss the relationship between the cultural analysis of IP and other approaches. She began with the initial reaction to the Chicago social norms theorists and the debate over whether this was new or just recycled insights. (Given my theoretical approach to originality, which is somewhat similar to that found in Ecclesiastes, I find this dispute almost meaningless; the question I’d ask is whether the social norms folks offered tools and concepts that were good to think with.) There’s been a similar debate in IP for years, focused on what economic incentive theory has to offer. Interdisciplinarity can help.

Katyal identified trademark law as a field where the limitations as well as the possibilities of economics are visible. Trademarks exist, dominant legal theory tells us, for the benefit of the public, but trademarks carry excess meaning: They support multiple simultaneous non-exclusive identities. (I’m not entirely sure what this means – is it that the person wearing branded apparel tells us something about himself, a meaning that is enriched, complicated, or even contradicted by other contextual elements, like location, physical appearance, or other brands? Or is it that various trademarks – American, “Where’s the Beef?” – have multiple meanings depending on the contexts in which they appear? Or something else?)

The official story of trademark is that branding is socially valuable. It facilitates information transfer, closely identifying a product with its source. In economic theory, a trademark is a way to promote efficiency. Against this theory, what role does cultural analysis have?

Here Katyal invoked the work of Barton Beebe on the semiotics of trademark. The economic approach fails to explain doctrines like dilution and distinctiveness. Trademarks are themselves status-signalling goods, and this social meaning – the meaning invoked when you wear a Coke T-shirt or, for that matter, one that says Enjoy Cocaine – is protected by law.

Trademarks function to draw consumers into relationships; they can work as floating signifiers that can be used for any purpose and don’t have to be tethered to any particular product. But, at the same time, trademarks don’t have to carry the owner’s meaning; they can be flipped (like Burberry’s adoption by chavs?). Social and cultural theory can help us understand why trademarks have become so powerful and how their meanings can be altered.

Katyal identified the recent Falwell case as one in which the court allowed the semiotic function of the term Falwell (or Fallwell) to remain floating. (I wasn’t clear on whether she thought the court’s reasoning followed the same paths semiotic theory would take.) A semiotic model of trademark pushes in the direction of a speech-oriented theory, whereas the economic model leads to a product-oriented theory.

Finally, Katyal suggested that the idea of corporate personality helps explain why corporations would invest in making marks meaningful beyond their products. And this – as one commenter pointed out – is why the normative thrust of adding semiotic theory to trademark law is less clear than you might first think, given the whiff of high academia about semiotics. Economic theorists have at least sometimes been skeptical of dilution and other extensions of trademark precisely because only core trademark infringement has an easy incentive/information story to tell. Semiotics explains why it would be worthwhile for a corporation to control meaning more broadly, even if the theory also suggests that such endeavors will often be futile. Corporate personality is the propertized (and smiling) face of semiotics.

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