AU IP/Gender: Panel IV: Gendered Understandings of the Role and Scope of IP

Moderator – Irene Calboli, Marquette Law School and National University of Singapore
Carys Craig, Osgoode Hall Law School, York University – Deconstructing Copyright’s Choreographer: the Power of Performance (and the Performance of Power)
Feminist approach to conceptualizing artistic creativity can shed light on choreography as engaged and embodied practice and demonstrate weaknesses of dominant conception of creativity (myth of romantic author). Relational approach to ©, reimagining creative practice/authorship.
Deconstructing copyright’s choreographer: the myth of independent creation; false binaries of mind/body, author/performer; reuse and transformation of choreographic works as cultural conversation. Unsettling core constructs of independent authorship, ownership/exclusion.
©’s liberal individualism versus choreography.  Copyright’s author is liberalism’s human subject, depending on Enlightenment ideals of individuation, detachment, and unity. Establishes moral hierarchy: author as creative genius and everybody else, the mere copyist. Diminishes value of creative reuse.  Gender of genius: conceptions of genius over time have changed to be whatever attributes are attributed to men: sometimes passion, sometimes rationality. Feminist theories of selfhood, agency, and creativity offer a way to reconstruct ©’s author and capture the situated nature of authorship and the dialogic nature of creativity.
Choreography exemplifies the mismatch between concepts and practices. Divergence between ideal of authorship and art of choreography is especially pronounced. In part b/c of fundamental culture of sharing entrenched in dance historically and today. Body is the instrument in dance—makes dance something experienced with and through others; necessarily social and communicative.  Dynamically interactive. 
The choreographer as creator: who qualifies as the author?  Formerly choreography was treated as mere stepchild of drama.  Dance seen as mere spectacle in 19th century—to call it dramatic composition “is an insult to the genius of the English drama.” Contributed nothing to art (exhibition of underdressed or undressed women). Loie Fuller’s Serpentine Dance was refused © on grounds it wasn’t a work but an idea that a “comely woman is illustrating the poetry of motion.” Poetry is expression when written, but not when moved.  Finally, Balanchine: “ballet is woman”—“a garden of beautiful flowers, and man is the gardener.” Women as bearers of meaning under the male gaze; role of maker of meaning is reserved to man.  Copyright’s ideal type: white male vision of choreographic production, with gendered and raced performative duties, enshrined as standard for copyrightability: Caroline Picard.  Woman gives aesthetic pleasure but does not create it.
Choreographer as independent creator: as the limits of authorship are drawn, separating physicality from authorship. Values implicit in this artificial division are gendered.  Balanchine says choreographer is sculptor—choreography is a solo endeavor; dancers are the putty/clay and his job is to get them to make real his desired vision.  Compare Beiswanger, who says that the relation between choreographer and dancer is dynamically interacting; the molding of vision is mutually creative process.  Dancer is filled w/human creative capacity, shared tradition. Only dynamics of power and privilege allow us to recast choreographer as sole author and dancer as raw material.  Mirroring the mind/body duality.  Textual is privileged over performed.  Masculine over feminine.
Improvised dance: Moment of pure expressivity where mind and body merge: © struggles and recedes from view in the face of that ephemerality. Doctrinally difficult and practically irrelevant because process is key when it comes to improvised dance, and © prefers the product.
Dialogic nature of choreographic expression: Traditional ballet has heterosexual dynamic: masculine power, feminine weightlessness; strict division of duties in traditional ballet. Virginal/manipulative ballerinas and supportive/manipulative males. Jones and Zane quoted Balanchine but changed the gender of who was supported and who supported—angered lots of people.  Choreographer reckons with who can give weight and who bears it, who initiates movement and who follows, who is passive and active, who is looked at and who looking.
Dance can challenge power—street culture (initially male-centered); rap videos—TLC gestures at sexuality but rebuffs male gaze (RT: see also Anaconda!).  Madonna’s appropriation of voguing from LGBT community. J-Setting comes from historically black colleges with a marching band and auxilliary section in the front with the moves: gay men reproducing feminine movements: Prancing J-Settes.
Gender as performance, Judith Butler: think of choreography as gender performance and vice versa. Powerful strategy for transforming codes and conventions in dance: continue to exercise discursive agency through re-presentation and reimagining of established contexts.
Charles Colman, New York University School of Law – Patents and Perverts
Project started with investigation into fashion ©.  Lots of issues around adornment/gender.  Fashion has meant women since about the turn of the 19th century in Anglo-American culture.  Effeminacy more broadly as a concern: often serves as a way to police patriarchy.  Self-imposed restrictions.   (RT: I think of Mary Anne Franks: How to Feel Like a Woman, or Why Punishment Is a Drag: “Law and society typically regard prison feminization as a problem of gender transposition: that is, as a problem of men being treated like women. In contrast, this Article argues that feminization is punitive for both men and women…. One could take the claim, as it were, on its face: It is terrible to be treated like a woman. Alternatively, one could read a presumption into the claim: It is terrible for a man to be treated like a woman. … Unfortunately, the second reading—what I call the gender transposition reading—is the more common and dominant one.”)
Oscar Wilde: not known as a “homosexual” since that concept wasn’t yet invented—a sodomite. His diseased behavior was retroactively mapped onto the decorative objects/aesthetics people in the movement he was involved in had championed. Henceforth it was dangerous for men to display an affinity for unnecessary ornament.  [Relation to imperialism/racism: men of other races/cultures often condemned for their own forms of ornament?]
Piece argues that this discomfort with design mapped onto the design patent cases.  Decorative is opposed to dishonest.  Useful/useless. Design patent rhetoric, though starting off neutral (passed 1842), eventually takes on this connotative cluster of value hierarchies.  Judges make clear that they don’t like design and can’t tell things apart.  Designs aren’t valuable.  Defer to experts when the designs are “feminine” but analyze in great detail when the subject is a saddle.  The central theme, which begins to determine more and more cases, is that objects associated with women = deference to experts or dismissed in value entirely.  Cigar case = nuanced sua sponte analysis; not other things.  Second Circuit was the court of last resort in most cases because SCt stopped granting design patent cases after Oscar Wilde. Second Circuit gets increasingly outlandish in characterization of designs before it.  Case where 2d Circuit says that ties are bought not just b/c of their utility to the wearer (CC: query what that might be!) but b/c of their appeal to “others”—says that the purchaser is often a wife or sweetheart.
Homophobia/fear of perceived effeminacy related to analysis of design patents.  Distorted the jurisprudence that basically erased design patents from IP landscape, dispersing claims that would otherwise be made to © and TM.  Judges were performing gender norms for their audience, which had an impact on the law.  Demonstrating masculinity by not engaging substantively with subject matter.
Calboli: This is a very specific US/Canada approach.  In Italy and similar jurisdictions, ornamental design has been strongly protected even before registered designs. Value of protecting beauty, design, good food: quality of life issues. 
Colman: often interest in French things or Asian things was read as effeminate—suspect or ugly.
Craig: In Canada, we draw on English background but are next door to the US; but also we have Quebec and civil law influence.  Canada protects performers’ rights, including moral rights for choreographers and performers.  But there’s still a clear delineation between the copyright and the neighboring right.  Parsing the contributions to figure out what the performer’s right is and what the choreographer’s right is.
Rosenblatt: you both talked about “negative spaces”—dance and fashion have functionally opted out of the IP system. Cause, effect, something else?
Craig: not clear if we’re not using it because it doesn’t fit or whether it doesn’t fit because we haven’t been using the right © concepts. Doesn’t need to be answered: there’s a clear mismatch which makes legal structures difficult/awkward, which then creates space for dynamic evolution in the art form, thriving in the absence of protection.  Canada: design does extend to fashion, but it’s unused. There’s just no point pursuing registration and litigation because things happen so fast.  Where you have a gap between a way the creative community perceives its activities and what matters, and the way the law works, the law is just irrelevant. And irrelevance allows vibrant evolution.
Colman: Design patents were created mostly for stove designs in the US. Even then, though, they said the arguments applied w/equal force to creators of garments.  Rhetoric changes over time from “designs and inventions” to “designs” and “inventions”; clear migration over time to designers trying to use misappropriation or copyright.  Cheney Bros.—maybe the subject matter didn’t seem important compared to news. After Cheney Bros., though, you saw more trade dress claims—so doctrine & legislative inaction pushed the fashion industry in particular directions.
Peter Jaszi: Not sure choreography opted out entirely—selective. Some owners of choreographic rights enforce them very vigorously and are widely feared. The most is the Balanchine estate.  Does the work give you any insight into current US controversy over copyrightability of social dance?
Craig: true, not entirely opted out.  Only in the dead white man’s estate have we been able to fit the © romantic author concept—it’s not an accident that Balanchine is treated as the lone genius. Contracts also presuppose copyright ownership, which tends to be how choreographic works are licensed. There’s not much litigation, but the contracts are much more inclined to require attribution and some degree of creative control. A moral rights understanding rather than proprietary/exclusionary one.  Social dance: it’s not clear what an anti-social dance is—is it social because it’s traditional/historical, or social by its nature?  Original arrangement of steps—boundary setting is very difficult b/c we have a hard time explaining what makes dance, dance other than that it is useless.
Colman: Sarah Burstein says that it took a while for Americans to figure out what design was; turned out to be stuff that wasn’t a sculpture, wasn’t X, wasn’t Y—the salon des refusés. His work suggests an additional explanation. Clothing is also embodied, with symbolic or spiritual power; people react to dress as to almost nothing else b/c it’s immediate visual representation of identity before you say a word.
[for Craig: Performance and the idea of the supplement in theater—one performance in a chain of performances—that’s the one piece I’d love to see added to the choreography paper. Cf. Francesca Coppa, Writing Bodies in Space.]
[1. Compare what happened during the same period in TM, growing protection for trade dress though also skepticism about value of TM: more acceptable because language of psychology and commerce, specifically because of the idea of the advertiser controlling the consumer rather than the consumer choosing fripperies?
2. So does the turn to design patent represent another step in the feminization of America?  Or does a billion dollar verdict automatically convert the topic to one of masculine interest, the same way computer programming switched in value when men started to do it?
3. Comparative analysis: design patents in other countries? Does that track with masculinity and its performance in other countries?]
Colman: notable lack of commentary on the fact that design patents vanished. Janis & DuMont are the exception and he wants to offer an alternate account.  DuMont identifies nuances he identifies as “mishaps” but these terms like originality etc. are susceptible to so many interpretations that he finds it difficult to believe that they aren’t a deep level implementation of norms. 
Design patents began being used more when 2d Circuit began upholding them (late 50s/early 60s) and when Fed Circuit was created—so it precedes the billion dollar verdict.
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