IP and Gender: The Unmapped Connections: My presentation

Today I was on a panel at AU's Washington College of Law, part of a day-long program on IP and gender. Notes on other panels to follow; there should be a webcast soon at the WCL site.

My notes for what I said:

Wednesday morning, as I was putting off preparing for this talk, Professor Patry posted an entry on his blog – “Fair Use and the Women of the University of Chicago.” He was discussing CollegeCuteness.com, which sampled the Facebook for 10 colleges, posted pictures of 35 women from each college on HotOrNot.com, and analyzed the results to discover that yes, the women at the University of Chicago were less attractive than women at the other colleges.

He labeled the copying of the Facebook pictures a “classic fair use” – and I agree, though probably not for the reasons he thinks. As far as I can tell, a classic fair use is one that comments on a woman’s body. Nor could Professor Patry resist his own dig at the women whose pictures had been appropriated:

“Presumably, there is also a lack of economic harm: what third parties would, according at least to the study, want to buy the pictures?”

So I want to point out one thing beyond the obvious: As a commenter quickly pointed out, Professor Patry’s joke has distracted him from actual analysis of the fourth fair use factor. Maybe no one would want to buy pictures of women at the University of Chicago, but they weren’t the only ones whose pictures had been copied: the women at the winning college were voted substantially more attractive and, by his own logic, suffered marketplace harm.

This is what women’s bodies do in the law – they distract, they take center stage, they disrupt logic.

That’s what makes it easy to associate parody and transformative use with the use and reuse of a woman’s body – parody is also disruptive, chaotic, carnivalesque.

Some examples: Campbell v. Acuff-Rose, where Roy Orbison's pretty woman gets reworked as a big hairy woman. Leibovitz v. Paramount, where Annie Leibovitz's photo of Demi Moore gets mocked by an ad for Naked Gun 33 1/3. One particularly interesting element of this case is the court's treatment of the model Paramount used -- a pregnant woman whose picture was altered so as to appear with Leslie Nielsen's face. Although she's naked and central to the poster, she's invisible in the case; the court goes so far as to say that Paramount superimposed "a photograph of Nielsen's face" on "her body" (emphasis added). It's a photograph of a man's face, but somehow it's on an actual body; the woman and the representation of the woman merge. Anyway, the court says that the poster is a parodic fair use because it criticizes Leibovitz (or possibly Moore; the opinion is not entirely clear which woman is the target) for taking herself too seriously, for asserting that a pregnant body is beautiful. The original is pretentious, and the poster asks, "Who does she think she is?"

Other cases of note: the Food Chain and Dungeon Barbies, where it turns out that you make a transformative fair use of Barbie by sexing her up, ripping off her clothes to show the real doll underneath, the problems that were there all along in her always-already sexualized representation. Transformation, it turns out, isn't so much about adding sex as revealing the sex that was already there. By comparison, adding violence or subtler commentary, say about commercialism, isn't as readily recognized as transformative, as the Cat NOT in the Hat and Michael Moore's Big One (with its ads mimicking the ads for Men in Black) cases rejecting fair use defenses reveal.

I want to be clear: I'm not saying that mocking women shouldn't be transformative use. Rather, I want to call attention to a pattern in the case law.

t’s not surprising that copyright law is subject to biases that pervade culture; it would only be surprising if copyright escaped them.

The lesson for copyright law in particular, though, is that the gendered meaning of parody is one reason among many that we should reject the parody/satire divide and allow fair use to a broader range of reuses.

Other ways in which sex and gender have influence fair use doctrine include the definition of the market for the fourth factor. The Wind Done Gone case emphasized that Alice Randall's novel contained homosexuality and miscegenation, which the Mitchell estate would never allow in authorized sequels. But I doubt the estate has any interest in licensing a science fiction version of either, yet that would clearly be in its legitimate derivative market. One version is within the copyright owner's rights, one isn't, but why? The question becomes even more puzzling when we realize that there are plenty of copyright owners in the market for gay and lesbian works (and for sexually explicit works, which is an overlapping but nonidentical category). Not only that, but there are even companies with presences in the sexually explicit and family-friendly markets at the same time, from (generally) works whose copyrights are owned by conglomerates to (specifically) movies that are cut to be family-friendly for TV broadcast and also released with unrated extras on DVD. There's clearly a market for Brokeback Mountain, so what makes Brokeback Top Gun such an obvious fair use, presumptively outside the copyright owner's control?

Fair use doctrine has tried to finesse the is/ought of the fourth factor by presuming that copyright owners wouldn't license transformative critical uses and thus lose nothing from allowing such uses to proceed without payment. And the sexual/nonsexual distinction helps with that, since courts simply assert that no "legitimate" copyright owner would have works on both sides of that divide. But it's not true (see Kane v. Comedy Productions, which involved a stripper/singer who wanted to license parodic uses, including the Daily Show's mockery of her act; see also the recent New York Times story about celebrities licensing their sex tapes). The law should recognize that a determination of what markets copyright owners can reasonably expect to have is normative rather than empirical.

Likewise, the relevance of commerciality for the first factor has strongly gendered components. Campbell quotes Johnson that "No man but a blockhead ever wrote except for money." So noncommercial production -- which women have done for centuries, and continue to do in large numbers online, for example in fan fiction -- is blockheaded, stupid. Campbell's goal was noble, to free a transformative use even though it was being sold in the market, but it achieved that aim by denigrating forms of production not motivated by monetary reward, which just happens to be how a lot of women's works are produced.

Finally, the public/private distinction of the second factor deserves further exploration from a feminist viewpoint. Increasingly, fair use cases finding for the defendant use the published nature of a work as a sword for the defendant. But this idea of publicity, being public property and open to anyone's use because you're publicly visible, has uncomfortable resonances for feminists. (Note also that Salinger and Gerald Ford's publisher win their cases because their words are private and thus their own, while women's images are public.)

There were a number of interesting comments, which I'll write about later, with the rest of the panels.