IP and Gender: The Unmapped Connections: Panel 2 comments

Peter Jaszi: In Wisconsin in 2005, Ronald Reagan got part of a highway named after him, and Harriet Tubman got a whole highway. But it turns out that his part was over ten times longer than her whole, and his highway is a major artery and hers is part of an abandoned system that goes essentially from nowhere to nowhere. The appearance of fairness breaks down when you look at the details. In general, we might assume that practices are neutral though examination reveals an absence of neutrality, as to gender and to other characteristics.

The panel papers all address this by dealing with embodiment, which legal scholarship doesn’t talk enough about. In criminal law, for example, we talk about abstract rights and not about the bodies under constraint. Bartow’s paper examines how the social and legal process of embodying human reputation in the built landscape marginalizes women and other subaltern groups and contributes to the literal rewriting of history. Kane’s paper shows how conflicts over access to drugs, and the outcomes of the IP system, are written on human bodies. Tushnet’s paper is about the disruptive effect of the body on legal doctrine, which is privileged in transformative use analysis. Market analysis elevates the significance of stereotypically male modes of economic participation over those that are stereotypically female. Admirable and useful aspects of IP law may be built on disembodied discrimination.

Jaszi read from Jeff Koons’ affidavit in yet another infringement case, Blanch v. Koons (the relevant portions are included in the opinion at that link). Koons copied a model’s legs from a photograph to use in a painting, Niagara. Calling the legs “anonymous,” Koons insisted that the legs were “a fact in the world.” “[T]hey are not anyone’s legs in particular.” Koons was speaking about fair use, but he found it necessary to talk about the alienation of the model’s body parts from the model. As I understood Jaszi’s point, Koons was, in some deep sense, quite wrong: those legs were the model’s legs. That doesn’t make his use of a fashion photo unfair, but it is telling that he explained himself as a reuser of materials (women’s images) that were just out there in the world, free for him to use, with no humans involved.

Kane asked me if I thought plaintiffs’ motives in fair use cases were ever misogynistic. I didn’t want to characterize plaintiffs or defendants that way necessarily (though it’s awfully easy for 2 Live Crew and nearly as easy for Naked Gun 33 1/3). It’s just that fair use of Barbie turns out to be about tearing her down, not building her up – she’s already run for president under Mattel’s auspices.

Josh Sarnoff: Marxist critiques may be the next step. What do we do when biopharmaceutical patents expire and we don’t have a process for determining generic equivalency? We could regulate prices or compel production, though there’s a bad precedent developing that federal patent law preempts state attempts to regulate prices because Hatch-Waxman reflected a federal balance about what companies were supposed to be able to earn from their drugs.

Kane: I’m interested in feminist advocacy rather than a feminist theory of patents. There’s no way to guarantee a generic market develops, though the women’s health movement can weigh in on IP, as it did in class actions over taxol and tamoxifen, and in comments to the PTO on gene patenting. Only a subset of women benefit from Herceptin; you can get your tumor tested to see if you’re one, and then there’s a big challenge: if you would benefit, can you be sure you’ll get access?

Ann Shalleck: The three papers seem to be animated by different parts of feminist theory. Tushnet suggests MacKinnon’s dominance theory; Bartow invokes the public/private distinction, noting that even when physical space is privatized, women don’t inhabit the public world – they aren’t visible; Kane uses the women’s health movement’s concern for the invisibility of women in science and medicine, which hides a deeply gendered reality.

I responded that I definitely draw on MacKinnon by way of John Stuart Mill; not enough people recognize MacKinnon’s insistence on the radical undecidability of what a women’s culture would look like absent oppression, which is very Millian. Moreover, though Shalleck didn’t use “visibility” in describing my project and did with the two others, I’m also talking about visibility, in that a woman’s image in public becomes so public that the natural critical response seems to be to rip her clothes off.

Bartow noted that the issues are about privilege and power. The Darla Moore School of Business, so named because of a major gift, faced a backlash so severe that they took the “Darla” off.

Kane added that she wasn’t necessarily showing the disparate impact of IP on women – there’s no comparative study of prostate cancer – but her project was spurred by the possibility that increased attention to women’s health issues would be accompanied by IP disputes that would frustrate access to new drugs.

A person I didn’t know asked about intersectionality – the racial and heteronormative politics that also support these structures of power and law. Kane agreed, pointing out that African-American women have trouble getting access to nonsurgical, nonradiation treatment for breast cancer.

Julie Cohen suggested that I should talk about Google and the Perfect 10 case, given that there the pornographer is in the market. Likewise, there’s a case in SDNY about ads for Kate Spade showing a model in a bathroom stall, with only her legs, shoes, handbag, and panties visible. The company rejected the photographer’s work, but hired another photographer to create similar works, and the question was whether this sort of transgressive image was idea or expression. My thought about Google: pornography is definitely crucial to the story I want to tell about markets; the pornographer’s offer is always “I’ll sell you anything” – any body, any sex act – so of course porn is at the forefront of licensing any reuse, or trying to do so (see also the Sandy Kane case).

Cohen also asked Kane: the theme here seems to be the ways in which women are (or are seen) in public, and that way is often sexualized. For patents and women’s health, why is the canonical example breasts? HPV or heart disease could be women’s issues. Kane agreed there is a question about why breast cancer is central – and why stories about it are always illustrated with a mammograph, regardless of relevance – but breast cancer does raise lots of interesting issues. HPV, by contrast, so immediately implicates sex that sexual activity takes center stage.

Laura Heymann: Bartow points out that street names generate associations with the people who live there. What about attempts to impose meanings on new developments, so developers signal who’s supposed to live there? Bartow replied that developers often build and name streets for their kids, but then the streets are dedicated to the town and then it’s an issue of public policy about whether to rename them.

Christine Haight Farley: Looking at the cases, it seems obvious: women’s bodies are meant to be commented on. The presence of a woman’s body in the original is fair game. Roy Orbison was commenting on a woman’s body, so 2 Live Crew gets to offer its own 2 cents. Likewise, Liebovitz is a case about two women “asking for it.” By contrast, Jeff Koons lost another case about the Pink Panther when he inserted a woman’s naked body; there was no woman present in the original, so that didn’t count as commentary.

I really liked the way Farley phrased the point, and intend to use it (with attribution) in the final version of my paper.