Welcome: Five great years! The conference helps honor the feminist history of the law school. The connections between gender & IP were novel and nonobvious, and also fun.
Anita Allen, University of Pennsylvania Law School
Introductory Remarks: First became aware of the gendered aspects of IP in a class with Gideon Parchomovsky: Campbell v. Acuff-Rose, Pretty Woman: she realized that it is a song about sexual harassment. Both songs objectify women, and they’re both about stalking women, though the 2 Live Crew song is also racialized. Is there a way to rewrite Pretty Woman so that it’s not sexually harassing? Would that be a parody?
Some of Allen’s past research has identified gendered dimensions of privacy law, and there’s a relationship with IP.
Women make quilts, and men turn themselves into ejaculate: Zacchini, the human cannonball case. Zacchini was allowed property rights in his act. In the age of cellphone cameras, can this right be maintained? Men have their privacy and publicity interests as well, and they desire to control presentation of, for example, machismo. Hoffman v. Capital Cities: Dustin Hoffman shown in a gown like the one in Tootsie, but not the one he actually wore, and he initially won a $1 million judgment.
Modesty or property? An actress in the late 19th century sued her manager and photographer for a photo in which she appeared in tights. But she often appeared in pictures wearing tights: the case was about her right to control when her image would appear. The court recast her claim as one about modesty, but it wasn’t. In the past, it was controversial to make statues of women (philanthropists, feminists), because that interfered with their privacy, but it’s no longer controversial.
In 1902, though, the NY courts refused relief to a woman whose picture appeared on a box of flour. Later, in 1931, a filmmaker makes a film about a woman who used to be a prostitute and was acquitted of murder; she’s now a homemaker and wants to control the use of her past. There is a pattern of creative people appropriating women’s images to propertize them and sell them as creative works to others.
Allen calls these “Pretty Woman” cases: people want to use images of women to sell stuff. So White v. Samsung Electronics is an example of this. Vanna White claims property in highly gendered attributes: blonde hair, jewelry, hostess role. However, claims to property in images may interfere with women’s abilities to tell their own stories when men appear (perhaps in a negative light): Friedan v. Friedan, in which Betty Friedan’s ex-husband objected to pictures in which they were together because he no longer wanted to be associated with her.
A lot of privacy/physical intrusion cases have been highly gendered in terms of discussing control, seclusion, the extent to which women should be visible to others. Doctors feeling free to tell other men that it’s okay for them to watch a woman giving birth: why would a doctor conclude he had the right to do that?
Control of exposure is also a big legal concern: governments are allowed to require g-strings and pasties.
What are the disparate impacts of our policies on women? E.g., our approaches to security screening. Since people pay more attention to pictures of women, and women care more, these technologies have specific consequences for women (upskirting, for example). Privacy breaches: they reveal shopping patterns, and women are the shoppers—the TJ Maxx data breach was a problem for women’s financial privacy; likewise women disproportionately consume more medical services.
Peeping Tom as Good Dad: In privacy law, rights are interpreted to give men bizarre entitlements. So a man who heard a rumor that his ex-wife was gay sneaks a picture of her and her girlfriend having sex through the window of their house and takes it to family court to get custody (which he does), and the girlfriend sues for invasion of privacy, and the court holds that it’s not an unreasonable invasion of privacy for a father to photograph the mother of his child having sex in a private bedroom: in 1999!
Back to the beginning: A song about sexual harassment is seen as romantic and protected as the property of the man who wrote it. But stalking itself proceeds by invading the privacy of the victim. What kinds of rights do we have to stop that? Women’s shelters, for example, want to avoid public reporting that would let abusers find clients.
KJ Greene: He thinks of White as unwarranted expansion of IP, but it’s true that there’s a tendency to exploit women’s images, so how do we deal with that?
Allen: It’s not White’s fault that society overvalues blondes in evening gowns, so why disparage her effort to assert a property interest against others moving in on something she’s done very well? Maybe we should support her exploitation of society’s foibles. But Kozinski had a point—this is popular culture, it belongs to all of us (a public woman!), and mere associations should not be owned.
Jaszi: Copyright law used to have a morals clause: we could say it’s against public policy for men to claim ownership in narratives of stalking. But that was written out of the law in a case about porn. What about reintroducing moral or ethical limits on protection?
Allen: At least one of the Justices characterized the Orbison song as “romantic,” at least in comparison to the 2 Live Crew version. It provides the male fantasy: his stalking succeeds. If we had a morals clause, “Pretty Woman” would still survive pretty well—he doesn’t kill anyone or rape anyone, so no problem. She doesn’t trust judges to make those distinctions.
Q: What about people giving away images on YouTube, MySpace, etc.?
Allen: We voluntarily give up lots of information, and we need to think about whether we as feminists should discourage that. She’s very troubled by such self-publication. Should we force people not to disclose private information? Privacy is an affirmative value, even if people are willing to give it up.
— Panel One —
Questioning Assumptions
Rebecca Tushnet, Georgetown University Law Center
Economies of Desire: Fair Use and Marketplace Assumptions
I spoke about two models of creativity, which are idealized and often interpenetrate in practice. Model one is the Supreme Court’s “The economic philosophy behind the clause empowering Congress to grant patents and copyrights is the conviction that encouragement of individual effort by personal gain is the best way to advance the public welfare through the talents of authors and inventors in ‘Science and useful Arts.’” See also: copyright adds “the fuel of interest to the fire of genius” and “no one but a blockhead ever wrote, but for money.”
Model two is the artist who can’t stop creating, from whom art bursts forth like an unstoppable stream. My prototype for that is the fan creator, who deliberately operates in a noncommercial market, expending substantial effort and sometimes money in creating works that are shared freely. I talked about the irrationality of this from the standard perspective, and the core human commitments expressed (which can only be glancingly understood as "preferences," particularly because they're dynamic) by noncommercially motivated creativity. It is this excessiveness, multiplicity, lack of scarcity--you can have 10,000 fan stories setting forth the circumstances of Harry Potter's first kiss, all of them noncompeting in story-space--that makes fanworks such good category exemplars of transformative fair use.
Olufunmilayo Arewa, Northwestern University School of Law
Difference and Technology: Gender, Intellectual Property and Identity in the Internet Age
Technology is not progress. Context and meaning, and technologically-mediated constraints on our choices, are critical. How does difference play out in the internet context?
Representations on the internet (and elsewhere) mark zones of inclusion and exclusion: who are “we”? Autoadmit, death threats against Kathy Sierra, misogyny in rap and other cultural products.
Historical example: The Hottentot Venus, died 1815 at 26. Her name was Saartje Baartman: the name is a diminutive, symbolizing colonial condition and status. She was enslaved, and taken to London to be exhibited in a cage for profit, so people could see her protruding buttocks and fantasize about her exotic labia. She was exhibited by an animal trailer. She became a prostitute. When she died, she was dissected, the doctor removing her brain and labia and putting them in jars. They were exhibited in Paris for decades. Her body was returned to South Africa in 2002—it was one of Mandela’s first international requests when he took over.
We don’t know her real name, only the Dutch name she was given. She served as a central example of the black female throughout the 19th century. South Africans still consider her important. She was used to demarcate boundaries—in her case, the boundaries of humanity, because the theory was that she was not human. Although she’s removed in time, representations of women in porn are similar, reducing them to body parts and nonhuman status. Porn is pervasive on the internet. What are the implications of this brave new world where porn is everywhere available and a high percentage of our online interactions?
Séverine Dusollier, University of Namur (Belgium)
Queering Intellectual Property: A Deconstruction of the Masculine Property and the Female Public Domain
IP protection means something different to Europeans, who are strong positivists and unused to mixing gender and IP. Her work has focused on defining and defending the public domain.
Because we consider the public domain as a negative space, it turns into a wasteland, where everyone can go. She wants to build a positive definition for it. A lot of times, female creation is unprotected and in the public domain (cooking, etc.), where male creation is protected and honored. WIPO has studied traditional knowledge/folklore, which is also mostly transmitted and safeguarded by women. The public domain then reinforces the gendered dualism of creativity.
Some strategies that women have deployed against gendered dualism have also been deployed in favor of creativity in the public domain. Women have tried to conquer male territory: adding protection to traditional knowledge, based on Western ideas of IP. (I.e., just give us a chance, and we can meet your standards.) Another strategy: contest the authority of male territory—challenge notions of authorship, originality, infringement (appropriation art, where many of the prominent artists are women, like Sherry Levine). Open source and other open access schemes challenge the incentive discourse about IP to an ideology of sharing. This strategy is also problematic—she’s a fan of open access, but reacting to exclusion from the minimal rewards from IP by moving into a gift economy is like moving into the care economy for women. It leads to women’s work being un- or undervalued because it’s not paid. We need to assess the cost of the gift economy to the people who participate.
(This is something I’ve often wondered: Where is IP’s dominance feminism?) Dussolier is encouraged by Judith Butler’s inquiries into the ways in which male and female identities are constructed against each other. The public domain and IP are constructed in relationship to one another, and we need to explore the relationships between these poles.
First, we need to deconstruct what seems natural in concepts of property and public domain. We’re told that the public domain is unprotected—but that’s not “natural.” That’s an effect of IP law. Originality, novelty, authorship are normative criteria. Even though we think copyright and patent require fixation, laws have expanded to new resources that are relevant to markets: computer software, business methods. We changed our definitions. This performative function is relevant to the public domain too: we don’t put things into the public domain because of their importance, but because we want the market to benefit from the freedom to copy. That’s why traditional knowledge is unprotected.
Our view of the public domain is fallacious. It’s not separated from the domain of property. And it’s not reserved for the public—things in the public domain can often be commodified and privatized. If the public domain is performative, we can put new norms in place. So, for example, we should prevent the use of TM to substitute for an expired copyright. And we should impose an obligation of conservation, to enable the use of the commons.
Dan Burk: University of Minnesota Law School
Comments
Feminist theory moves us out of business as usual, startling/confronting us with a conundrum or paradox and encouraging us to think differently. Like the reaction to zen koans, the reaction can be dismissive or disbelieving: should we really take this seriously?
The usual policy metrics: does the IP regime promote progress? Prompt investment in creation? Reward the labor of creators? Benefit the public? Respect the creator? These papers shift away from those questions. Other questions worth asking: Does the IP regime originate in the material and political concerns of women-centered efforts to improve the quality of life for those who are oppressed? Does it improve the quality of life for people by avoiding the inaccuracies and distortions of biased paradigms? Does the researcher stand apart from or with the subjects?
Arewa asks what we mean by progress. Catharine MacKinnon argued that equality should not mean that similar things are treated similarly, but rather that it should mean ameliorating power disparities. Maybe we can do the same thing with our concept of progress: instead of “faster, bigger, more,” ask about justice, bias, access.
Coppa: the panel is about the amateur/professional line. The love embedded in the “amo” in amateur is gendered. How do we treat love? Can we construct a place of respect for loving creativity? Or will our attempts condemn women to not getting paid?
Dussolier: Wouldn’t divide it as amateur/professional—feminist artists challenged the notions of originality and authorship, and were acting as professionals. But copyright couldn’t integrate another notion of authorship into itself. And professionals wanted to create open access/CC using IP to ensure that their works would stay open, where they were put. Open access thus problematically relies on IP tools like contract and copyright. As professionals, the only tools they had were from the copyright/patent regimes, so they twisted those tools. Because open access is voluntary, it’s no challenge to the system. It doesn’t infuse more freedom into IP as a structure.
Shalleck: We saw challenges to dichotomies: public/private; market/family. Queering in sexuality is an important theoretical engine: she thinks of Janet Halley, not quite Judith Butler; Halley focuses on mapping relationships and providing us conceptual tools.
Allen’s multiple readings of “Pretty Woman” are a good example of that. Perhaps we are at a MacKinnon-like place of consciousness-raising/strategic interventions. Creative Commons may be something to do while we figure out what to do next.
KJ Greene: The public domain is used to subordinate by denying protection to the creations of disfavored classes, but subordinated peoples’ creations are also negatively impacted by copyright, as when sampling (or educational copying perhaps, or fan fiction) is deemed illegal or dangerous. Do we lose either way?
Allen: Mainstream culture offers the “big black butt” as an image. Why go back to the Hottentot Venus? If we are so accustomed to glorifying that, won’t we see the fascination with the butt as normal even if we understand that being put in a cage is horrifying?
Also, some of the spilling out of uncontainable creativity is related to mental illness—poets often have disorders. What if a lot of that noncommercial creativity comes from a pathological space?
Arewa: It was a particularly dehumanizing representation. It could be empowering in a different context. We see images of body parts pervasively in the media. If women are consistently objectified, the normality makes it more problematic.
Burk: Maybe confronting us with that shocking story can make us rethink the current images.
My answer to Allen's question about excessive creativity: This goes back to Charlotte Perkins Gilman's The Yellow Wallpaper: especially when women want things a lot, society often defines that as pathology. To the extent that this produces actual pathology, the fault is not the creativity but the constraints that have been put on it.
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