Reimagining IP/Gender: The Next 10 Years of Feminist Engagement with IP Law
Welcome – Michael Carroll, American University Washington College of Law
IP program and Women & Law program do this together—longterm collaboration.
Meredith Jacobs, American University Washington College of Law – Introduction
[nice things about me; thank you!]
Rebecca Tushnet, Georgetown University Law Center- IP, Gender, and Creative Communities
Thank you. AU offered me the opportunity to write anarticle early in my career about sex and gender in copyright fair use, which was very significant for me, and I greatly appreciate the program. Ten years: great diversity in topics, methodologies, building on foundations that are now strong. The papers this time around are great examples of the variety and significance of scholarship in the area of gender and IP, and what I see as a larger theme of hybridity: drawing from multiple sources and refusing to accept simple binaries even though law often demands binary outcomes. Communities of practice offer lessons formerly ignored in official accounts: and we’ve seen great strides in learning from those lessons, with projects like AU’s series of best practices in fair use; studies of IP’s negative spaces such as Betsy Rosenblatt’s work.
One of the key questions is well framed by Sandra Park’s paper on patent: asking the woman question: have women been left out, and how would their inclusion change things? My own experience at the DMCA hearings: mostly female group of vidders asking for an exemption because of the special ways in which remix enables women to talk back to mainstream culture; initially we were asked if maybe they could only give the exemption to women and minority men. We said no, but Francesca Coppa likes to say that where young men made videos about how awful copyright law was, the vidders went out and got a change in the law, if only a temporary change. Our presence matters.
Park’s themes of isolation as lawyer’s trick also reinforced the importance of community to a feminist analysis: many of the things we investigate can’t be understood in isolation and to isolate them is to mistake what it is that we are analyzing, or granting rights to. Charles Colman’s paper relatedly asks the gender question: in what ways have gender norms affected issues that do not necessarily seem biased on the surface? As he argues, design patents offer an intriguing example of such less visible effects, and as Carys Craig has shown there are many others in copyright as well.
So what are we to do with these regimes that are not just reductionist, but reductionist in ways that systematically reproduce gendered forms of disadvantage? One answer is to focus on the reality of hybridity: the interaction of legal and illegal practices; the interdependence of market and nonmarket (in fandom our raw materials are what others think of as already “cooked”); the importance of visual and musical expression even when copyright law models its rules on text; the dialogue between the individual and community, whose mutual interdependence is both frustrating and foundational; the positive tension between the radical (rejecting copyright entirely) versus the liberal (the OTW, which finds room for fandom in existing law and tries to work to improve that law); the defense of pleasure (which deserves defense for its own sake) along with the defense of productivity (which tries to explain why the pleasures of creativity have positive effects on the rest of the world).
Feminist scholarship successfully investigates the interstices and outsides of the law, the places where people’s stories don’t fit the legal narrative—Jessica Silbey’s work is an important example of this kind of work. Women’s work and women’s creativity has often been overlooked: we need to think about the detriments and the benefits of invisibility. As Rebecca Traister wrote of soap operas, in any “feminized (and thereby marginalized) genre,” the borders will be unpatrolled. But as visibility changes through increased surveillance and regulation, the balance of cost and benefit from trying to hide in one’s own space may shift—like vidders, groups may have to choose whether they’ll become visible on their own terms, or on someone else’s. In this context, I was struck by Lorraine Aragon’s example of claims to copyright over individual artist’s works by the local government in Indonesia; there are real dangers of being exploited by others’ claims of new forms of rights. Amazon’s Kindle Worlds trying to monetize what it calls fan fiction—similar example of subaltern creativity being recognized but only for the purposes of monetization, like punk and other subcultural practices: Hybridity imposed from outside has particular dangers: we need the opportunity of picking and choosing which regimes make sense.
Part of the necessary hybridity is recognizing that we need to be fighting structures, not condemning people who make different choices within a system that constrains all of us. Jhessica Rhea’s paper brilliantly quotes a Brazilian straight edger, who said that [a Brazilian Riot Grrrl band] “used to say that we should not worry about our appearance, but accepting this as the truth continues to tie me to the dialectic. Now I understand: to free me I need to know different points of views and make choices. Choosing to wear lipstick – or not wearing it at all – is something that makes me a victim of a discourse at the same extent.” This is a double bind, but recognizing the double bind also offers important possibilities for making common cause and honoring the forms of creativity that we have, created as they are under a patriarchal system. Or, to appropriate a Tumblr meme: She wears short skirts/I wear T-shirts/she’s cheer captain/and I respect her right to wear whatever she wants and participate in traditionally ‘feminine’ activities because I understand that life is not about condemning another woman’s personal choices.”
Carys Craig adds to this recognition of diversity the question of community: she asks “what collaborative, accretive, cultural creativity can look like when the legal norms do not appear to apply either in practice or in principle.” I’m attracted to this formulation because of my background in fan communities, where mostly women create new works usually based on existing popular copyrighted works. Some of these new works feature same-sex relationships between characters coded heterosexual by the official narrative, known as slash; there are a lot of theories about this, but one I’ve always been attracted to is feminist theorist Joanna Russ’s argument that slash asks and tries to answer the question: what would love and sex look like if we were free of patriarchal constraints? What would we be like if we were free?
So where are we now? Feminist IP scholarship reveals a diversity of form; diversity of genre in which we work as scholars and as activists. I think progressive IP scholarship is distinctively feminist in its openness to the new, to the divergent, the previously undervalued. Also, we rely on the distinctive characteristics of remix, or appropriation: To borrow a famous line, women can make our own history, but we do not make it as we please; we do not make it under self-selected circumstances, but under circumstances existing already, given and transmitted from the past. In such a context, remix is a way of taking what we’re given and making it better. Joanna Russ was not directly addressing Marx, but she could have been when she wrote of slash, “The writers and readers of these fantasies can do what most of us can’t do in reality (certainly not heterosexual reality), that is they can act sexually at their own pace and under conditions they themselves have chosen.” For us as scholars and activists, it remains for us to keep choosing our conditions, recognizing that our choices are partial and constrained but not therefore meaningless.