IP and Gender: The Unmapped Connections: Ann Bartow

Ann Bartow on the physical public domain and naming rights, which she calls “trademarks of privilege”: The men who control this country will at every opportunity name things after themselves. Why do we allow this and what are the alternatives?

Trademark is about the power of words – one’s opinions of the product and the mark are understood to affect each other, so if you like the beverage Coca-Cola you get positive associations with the brand Coca-Cola and if you like the brand you’re more likely to buy Coca-Cola beverages. In the physical public domain, however, we pretend this trademark relationship doesn’t exist.

Suppose there were a horrible Key Bridge accident. That might also harm the culture’s view of Francis Scott Key, which would affect Key’s descendants and our view of his historical importance.

Corporate naming rights are a huge deal. The new South Carolina stadium is named the Colonial Center – it doesn’t use the University’s name though it’s a university building. Colonial’s naming rights are important advertising for it, but, in contravention of trademark principles, Colonial gets goodwill without owning, running, or playing at the stadium. In other words, it’s intentionally blurring its trademark to get public goodwill.

Who chose Colonial? Was it the highest bidder? Carolina probably wouldn’t let Preparation H or a beer company name a stadium no matter what the bid. Who makes the decision? How much did Colonial pay and where did the money go? None of this is publicly disclosed even though the university is a public institution. How uch money goes for what naming honor? There are millions of opportunities at each school, and at a public institution, there should be some transparency and standardization. Otherwise people will get deals frome their buddies.

Who wouldn’t be accepted? Enron was un-named from a stadium in Texas. At the Florida Law School, adding Fred Levin’s name stirred up controversy. It’s a quasi-privatization of the law school, which seems to be endorsing his (very active plaintiff’s-side) law firm. How does that affect students, and the other firms that decide whether to hire them? John Motley almost gave a naming gift to Carolina’s law school, which would have created the Motley School of Law. (Aside: I have wanted to be the Yahoo! Professor of Law ever since I found out that there was a Yahoo! Professor of Computer Science. I covet that exclamation point.)

There are other situations with perhaps deeper social implications, where no private money is coughed up but the public’s money is spent on public buildings. Big example: the Thurmondization of South Carolina. As it turns out, 25-year-old (Wikipedia says 22-year-old) teacher Strom Thurmond got a 15-year-old pregnant, though he didn’t acknowledge the child for years. So they named the school after him. There are many Thurmond buildings, streets, lakes, etc. Is Thurmond a trademark? Do you impute your feelings about the man to the monuments, or vice versa? Aren’t students supposed to understand that Thurmond was a good guy? This isn’t just partisan: You can say the exact same thing about the Byrdization of West Virginia.

Thurmond didn’t wait for people to honor him; he asked to have a lake named for him for his 85^th birthday, and Fritz Hollings et al. complied. The only problem is that the people around the lake, previously Clark Hill Lake, liked the old name (it was named for the guy who gave the land).

Another set of controversies swirls around naming places for Martin Luther King Jr., Cesar Chavez, etc. Chris Rock has a routine about how, if you go to a new city, you already know to stay away from MLK Street because it will be scary and dangerous. Is the name really an honor? On the other hand, naming a ritzy, white street for MLK would also be strange. When communities try to name upscale streets after MLK, people oppose it. And sure, people have reliance interests in the name of their street, but maybe if they’re so desperate to avoid association with MLK they’re precisely the people who need it.

Bartow called for more democratic, transparent processes of naming. Very few women make it into the physical public domain. Street names become part of residents’ identity – compelled speech, in a way. Naming creates visibility, endorsement, validation. Though there are infinite possibilities in theory, we like Maple and Main in practice, just as we like Jennifer and Jason for kids. (The “we” here is whiter than America as a whole.)

What’s needed are best practices. Maybe naming rights should go to the highest bidder, or be allocated by direct democracy. There are (sometimes controversial) Robert E. Lee high schools throught the South, as well as places named for the slaveowners Washington and Jefferson. Yet there are no Hitler high schools in Germany; why do we enshrine Lee?

Sandy Levinson wrote a book, Written in Stone, about monuments and how we need to think hard about who we honor. Historical and cultural signifcance isn’t the same thing as worthy of being honored on a stamp or a statue. Jefferson Davis and Hugh Hefner merit scholarly attention, but not stamps, just as Lee Harvey Oswald and Al Capone don’t. To commemmorate, he argues, is to take a stand about value. But Bartow thinks he’s marginalized the women’s issues, with his odd reference to how Catharine MacKinnon would oppose a Hugh Hefner stamp while Levinson deals with weightier issues of value.