Gender & IP, Panel 3

Diane Zimmerman, NYU, comments: The papers here confirm how nuts we are about issues of gender. Zimmerman thinks IP may be more neutral than other fields, but it’s not neutral in terms of the life situations that get played out under the IP rubric. The papers also confirm that we should fear overprotection. Gender-specific denigrating commercial uses need a powerful fair use tradition allowing commenters to fight back.

Finally, this day demonstrates the marginality of IP – it’s a background tool and helps in some instances but it isn’t the thing that most people rely on most of the time to engage in creative activities and get them out to the public. We need to think carefully about what people actually want – Goswami’s paper points out that there’s no such thing as a group of people who want to protect traditional knowledge in a single way; they want many different things, from commercial rights to nonuse by outsiders. What are the economic structures that allow people who do important work to get that work recognized and marketed in the way they want? It is an economic issue, not an IP issue.

Ann Bartow, South Carolina, Gender as Intellectual Property: The Propertization of Women: Her topic is pink, the color of femaleness. Pink is a color for girls in a way that there is no color for boys – maybe for babies, but after that, blue is the color of depression and Viagra. (But see this history of pink/blue for babies.) There’s no enduring cultural connection between men and a particular color, because men are the standard and women are the other.

The pink color of fiberglass insulation as a trademark is one of the Supreme Court’s examples of how color alone can be a mark. In Qualitex, the Court recognized that the Abercrombie spectrum didn’t make much sense for color – what is the generic or descriptive color of a dry-cleaning pad? Is it arbitrary or functional?

Bartow thinks that people use pink in TMs in an instrumental way, a functional way. Many of the 8000 TMs that use pink are for women’s products. When men adopt pink they usually do so humorously, or insultingly – the pink triangle was used by the Nazis to denigrate homosexuals. Now there have been significant attempts to take back the pink triangle, but remember the origins.

Can TMs denigrate women? That’s one strain in Bartow’s analysis. The other is plain old confusion – TMs intentionally impute values and meanings to goods and services that we’re supposed to buy – femaleness and subordination.

Why is Owens-Corning fiberglass insulation pink? Her guess – it looks friendlier, like cotton candy. Victoria’s Secret also has a valuable PINK trademark. (And gee, what could it possibly mean for women to walk around with PINK on their chests or backsides?)

Communicative pink: on Our Bodies, Ourselves; Code Pink (antiwar group); Carolina Girl design that takes the South Carolina flag and makes it pink; on a “Women for Peace” banner. Decorative pink: on products for girls, on Camel’s new No. 9 cigarettes. Pornography pink is also common. (It’s not only pink that aids in the pornification of ads for women; Bartow showed an ad for Clinique moisturizing lotion that looked like a money shot.)

Pink ribbons for breast cancer: Barbara Ehrenreich wrote a powerful critique of this a while back that Bartow’s drawing on. Antiabortion groups use the pink ribbon to promote the theory that abortion causes breast cancer, because there are no TM rights preventing that.

Pink vacuum cleaners (traditionally feminine), pink boxing gloves (transgressive but cute), the Little Pink Tool Kit (to avoid icky boy germs), pink golf clubs (pinked up by Wilson for “the cure”). Message: buying our product helps women.

The locker room for the opposing team at Iowa is painted pink – it’s supposed to make the visitors feel gay and underperform.

All these pink marks are intended to signal otherness: (1) this is for women, (2) buying this helps women, and/or (3) this is a women-related product for men. TM owners free-ride on the existing meaning of symbols and appropriate them for private use.

Elizabeth Judge, University of Ottawa, Canada, Eyeing IP: Gender, Senses, and the Visualization of Intellectual Property: IP law favors the visual as an object of legal protection; subject matter based on other senses is less likely to get protection. This has gendered consequences for access to IP and for access to IP rights. The framing and interpretation of IP has been based on peculiar and narrow epistemologies, especially with respect to how personality is expressed.

If we take the IP system seriously on its own terms, then it’s creating skewed incentives to create visually.

If the media women create in are not within the incentivized areas, IP’s bias limits or redirects them. We should be, normatively, sensing IP rather than looking at it.

Examples: requirements of drawings for patents and industrial designs; stronger protection for graphic than literary characters in TM and copyright; traditional emphasis on the visual in defining what can be a TM; the way personality is defined by visual aspects for the right of publicity. Assumptions: knowledge comes from vision.

Her examples are Canadian, but other systems have the same features.

Industrial Design Act: design means features of shape, configuration, pattern or ornament that “appeal to and are judged solely by the eye.” Aesthetics shouldn’t be limited to the visual – you can lure customers in other ways.

Trademarks: TRIPs allows countries to limit TMs to visually perceptible marks, but doesn’t require it. Canada hasn’t made many moves to accept scent, sound, touch TMs etc. A mark is defined by its purpose, something used to distinguish goods and services. It could include nontraditional marks, but the interpretation has been almost entirely visual – the Federal Court of Canada has pointed to “something that can be represented visually.”

Playboy TM toupees – Playboy registered the picture and wrote out PLAYBOY. On the actual hairpieces, PLAYBOY was nowhere to be found. Instead, salespeople told customers that these were PLAYBOY toupees. The question was whether they were using the mark – the Federal Court said no, there was no use without a visual indication. The case doesn’t necessarily stand for the proposition that sound marks aren’t registrable, but that a registered visual mark isn’t being “used” when salespeople just say the word. But it’s been read more broadly.

If you register musical marks, you get a registration in the distinguishing capacity of the notation, not the music as played. From a cognitive perspective, marks based on other senses should be registrable.

Potential sex differences in sex; Women’s smell memory/odor identification is consistently stronger than men’s.

One concern is providing proper notice to potential competitors. But technology advances, and there are solutions.

Copyright: on its face, the law is sense-neutral – “whatever may be the mode or form of its expression” – but the types of works are generally defined with respect to the visual. For fictional characters, medium matters. Literary characters get less protection than graphic or audiovisual characters – looks win out over personality. Example: the Michelin man, whose image is protected regardless of the other characteristics he exhibits.

Under Canadian law, an “artistic work” requires visual expression.

Janet Cardiff, an experimental artist whose multimedia work focuses on sounds. The experience of the work changes as one moves through space. Under the Copyright Act, she’s not an artist, because it’s only visual media that are “artistic works.”

We should change how we see IP – start sensing it instead. This would be a more sophisticated view of “recognition” both cognitively and psychologically. This is a call for IP expansion, equalizing access to IP rights – it is not in conflict with a call for making IP rights less deep. More user rights, shorter duration, etc. are all consistent with more expansive subject matter.

Ruchira Goswami, West Bengal National University of Juridical Sciences, Calcutta, India, Intellectual Property Rights of Indigenous Peoples: A Gendered Perspective from India: Three different examples (1) embroidery, (2) painting, (3) folk music—all three are from the eastern part of India, and all are done by women and therefore unacknowledged by the overall community. There is no protection for these cultural protections in the current legal regime.

International law: supposed to confirm rights of indigenous peoples over intangible cultural practices and traditions. “IP” has started to become part of that language of self-determination.

The copyright regime is inconsistent with traditional cultural productions – problems of authorship, originality, fixation, duration.

Kantha embroidery– in Bangladesh and West Bengal – began with women weaving blankets and became more sophisticated. The art isn’t dying; women have access to the markets, because many are being trained in kantha. The problem is one of ownership: there are traditional motifs, and then there are urban designers who are ordering new designs and having them done. Traditional motifs are gradually being lost. Women are not designers any more, but are responding to the demands of the market. It isn’t an expression of culture.

Madhubani painting and authentication – from Bihar, line drawings using vegetable dye for color. Lots of human figures, reflecting common scenes and folk texts. They’re easy to replicate and sell at 1/10^th the price; the women making the paintings have no legal protection for copying. The creators are indigenous and there is no legal protection for their traditional knowledge because India doesn’t recognize “indigenous” as a relevant category.

Folk music and expropriation – there is a growing market for such music. The lyrics are the same, but the history has been removed. For example, Goswani discussed (and sang!) a song about migrant laborers in Assam who want a better life and are deceived about their prospects. There’s a traditional version, and a modern version available on a CD with a completely different presentation, absent the pathos of the original. Is this a violation of the moral right of the community? It’s not a religious desecration, and the song isn’t lost, but the history and the protest are lost. This hybridization is dangerous.

Central issue: remuneration. Economic returns are desirable – but at what cost? Of course these communities want to access the market and make money. Is authenticity important when your basic needs aren’t being met? Protection has to be a combination of economic returns and compensation for moral right violations. Recognition is important as well – it’s not enough to say that this is traditional music on your CD, but you have to give a history of the community and its struggle.

Problems: IP is exclusionist and individualistic, which is unfamiliar and uncomfortable to women. Human rights discourse is also male-centric. Moreover, women’s rights discourse is weak in South Asia. How can we step outside these paradigms to find the right solution?

Farley: The visual requirements aren’t homogenous – certain visual requirements meet the needs of having a definite scope for the law’s protection. But Qualitex discusses difficulties in uniform perception of the visual – differences in shades.

Judge: Canada needs a similar discussion of the ontological status of marks and our relative capabilities of representing and distinguishing different sense impressions.

Farley: Visual stimuli give us visceral reactions, as Farley’s negative reaction to Bartow’s multiple images of pink. We can call that functional.

Bartow: The Iowa coach suggested that the locker room was a “calming” color.

Q: Chanel No. 5 smells very distinctive; why shouldn’t there be TM rights in it? Copying it is passing off. (I presume through post-sale confusion, since the buyer and the person who applies it would presumably know if the competitor’s bottle were properly lableled.)