Law Profs, Part 2
The AALS conference is over, and I've had my 15 minutes of ... well, surely not fame, but air time. With discreet reminders at the 5-minute and 2-minute-remaining marks.
My extremely gifted fellow panelists for "A Cultural Analysis of Intellectual Property" offered fascinating and thought-provoking remarks, with Julie Cohen offering a description of how cultural theories, and in particular science and technology studies, can move intellectual property theory beyond the two predominant schools of natural rights and economics; Sonia Katyal developing a new corporate personality/identity theory of trademark; and anthropologist Alexander Bauer reminding us all just how inadequate the law is when it comes to protecting cultural heritage. Mark Lemley, the devout economist of the bunch, did an amazing job as commentator, managing to pointedly but constructively eviscerate us all, even with little or no prior notice as to what we would say. Thanks to everyone, especially Madhavi Sunder, who organized the panel but was unable to attend.
My own humble ideas, as you know from the last post, revolve around the need to consider areas of creativity -- like fashion -- that have historically received little or no IP protection if we are to develop grand, sweeping theories of IP. After some general ruminations about human creativity and the role of IP law, I offered a list of seven cultural attitudes that have contributed to lower levels of protection for clothing/textiles in the the U.S. (and probably apply to other creative fields as well). In very brief form, here they are:
1. Gender -- Since the Industrial Revolution, fashion has been considered a girl thing. (And more recently, a gay male or a "metrosexual" thing.) For many reasons, this leads to lesser legal protections.
2. Class -- Dress is a status marker; Americans are culturally resistant to class divisions.
3. Art/Craft distinction -- IP law protects both, but this division allows some things to fall through the cracks.
4. Verbal/Visual distinction -- At least since the Englightenment, words are associated with reason and high status; images are associated with emotion and lower status. Guess where fashion falls.
5. Mind/Body division -- We exalt the mind over the body in may ways -- and clothing represents the body to the world.
6. Permanent/Ephemeral distinction -- America's Protestant work ethic, among other things, leads us to place lesser value on things that are "frivolous" and disappear quickly, like fashion.
7. National Culture -- This is really a composite category. For many reasons, including the historical development of the clothing/textile industry, America (unlike France, for example) has not seen preeminence in the creation of fashion as part of our collective identity.
There are certainly other cultural categories that we could consider here. I thought about including race/ethnicity here, as I have in other work -- (1) the copying of styles from other cultures and (2) the racial/ethnic identity of those who work in the clothing/textile industry are just a couple of the relevant issues. (If you will be in New York in the next few months, check out "A Perfect Fit: The Garment Industry and American Jewry, 1860-1960" at Yeshiva University Museum or the perenially fabulous tour "Piecing it Together: Immigrants in the Garment Industry" at the Lower East Side Tenement Museum.) But sometimes you only have 15 minutes.
After I spoke, Chief Economist Lemley cautioned against assuming that just because we value something highly, it is (or should be) protected with property rights. Or in my case the reverse: we can't necessarily assume that just because something isn't protected by legal rights, it isn't valued by the culture as a whole. He's correct, of course -- to a degree. The "if value, then rights" argument isn't a sure thing. But in the case of the clothing/textile industry, there's substantial historical evidence that low status creativity led to lower legal protections -- and Mark did give me the benefit of the doubt on that score.
Happily Rebecca Tushnet was in the audience, and she reminded us all of lessons from feminist jurisprudence: it's interesting that just when women are about to get equal rights or equal protection in a certain area, protecting that area suddenly becomes unimportant. In addition, the argument that we don't offer intellectual property protection to something because we value it *so* highly that we want it in the public domain is a lot like saying that we value women *so* highly that we want to keep them safe at home. You said it, sister!
This is a long message but a brief description -- please email me if you'd like to chat further. Also the entire session was recorded and will be made available as a podcast within a few weeks; if the AALS allows, I'll post the link.
And now, finally, I can unpack and read the Sunday paper!