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Applying queer theory to analyze IP would therefore focus on revealing how IP doctrine foregrounds heteronormative cultural and creative expression, privileging a certain dominant culture and subjugating queer culture and queer communities and individuals. Yet another useful methodology for queering IP is to explore and explain communities and sites in which queer creativity thrives. Exploring such domains can help in identifying what elements might be essential for queer cultural and creative expressions to thrive, the relationship between IP law and queer creativity, and whether and how these domains of queer creativity challenge IP. In addition, this methodology provides important evidence in an exploration of the alignment between queer theory and queer cultural expression in practice. This approach adds a new and important element to commonly used methodologies, as it engages directly with queer creative sites, asking how these domains are constructed and linking the knowledge gained from this inquiry back to the theoretical queer analysis of IP. Notable examples of creative domains where queer creativity thrives include drag, fan fiction, roller derby skating, online gaming, queer cinema, queer art festivals, the ballroom scene, and queercore (a queer punk subculture). As this Article illustrates, a common feature that many of these creative areas share is resistance to, or rejection of, IP law, suggesting that the relationship between queer theory, queer creative expression, and IP law is multifaceted; queer theory aims to deconstruct IP law, while at the same time IP law may be an important element in queer creative expression. These two methodologies—a queer theoretical appraisal of IP doctrine and a practical examination of creative domains in which queer creativity thrives—suggest new ways to understand IP law and queer creativity. The methodologies reveal how mainstream concepts of normativity, sexuality, desire, and gender shape IP doctrine and how resistance to IP cultivates queer creative expression. These methodologies also can be useful for other critical approaches in IP scholarship, such as those focused on gender, race, socio-economic, and de-colonial contexts.

As with the sticky alchemy of all disciplinary lines, the canon has power because it accumulates to produce formations of knowledge. Given that some lines more than others are lines of privilege, it becomes possible to write off race, gender, queer scholarship as that “identity politics” stuff and, in turn, to define identity politics as distracting, divisive, infuriating. Lumped together and made synonymous with fragmentations in the field, critical race studies of media and communication emerge as a problem created by practitioners who emphasize “peripheral” rather than “core” issues, whose unfamiliarity and disinterest in knowledge “beyond their particular niche” ossifies to form “hyperspecialized” areas of expertise that are “of interest, mainly, to scholars also located in the same niches” (Pfau, 2008, p. 599). No doubt, for some, it is convenient to have white people do the speaking for brown and black people, and best when they do what Michelle Colpean and Rebecca Dingo identify as “drive-by race scholarship” (2018). But, as Gilroy notes, these economies also turn on reifications of “ethnic garb” that critical race studies of Communication must don—the more exotic and adventurous the cultural practices being studied, the more enthusiastic their reception within the academic institution (1993, p. 5; see also, Melamed, 2011). As institutional incentives for “diversity” and inclusion work in powerful ways to “determine whether we are hired or promoted” (Christian 1988, p. 67), some race or gender scholars now must be recognized as “experts” and “authorities,” rewarded with status and recognition. But within the terms of racial neoliberalism, it becomes possible to also say without facing much reproach: wait (...) we already have one of them. Do we really need another? I have been compelled, for most of my career, by questions about the architecture, politics, and power of knowledge. In various ways, my work tends to loop back to the ways that raced and gendered formations are baked into established grammars and canonical knowledges. Much of what I have written has focused on the ways that dominant discourses assume the characteristics and formidable power of “truth,” parading about as universal, even though they always speak from a particular point of view, centering a specific historical subject. Certainly, part of what the #CommunicationSoWhite preconference organized was a way to collectively refuse this racial order of things, these habits, as Kimberlé Crenshaw puts it, of wishful thinking and studied denials (1997, p. 97), that invariably imagine the historical subject as a white, western, hetero-patriarchal male, and which assume, with breathtaking certainty, that his experiences are always applicable and fully generalizable to the rest of us. Confronting the canon’s deliberate tendencies to not see race or to see race in only this or that way, part of our challenge is to find ways to unlearn the canon, to speak without constantly having to explain the formidable power of difference and alterity as it marks everyone’s lives—not just our own. Indeed, part of what I witnessed at #CommunicationSoWhite was a concerted collective effort to figure out how not to follow the official paths laid out for us. To quote Ahmed again, citation is how we leave a trail of where we have been and who helped us along the way. While writing her recent book, Living a Feminist Life (2017), Ahmed adopted a very strict citation policy. She did not cite any white men. By “white men,” she explains, she means “an institution, as well as the mechanisms for reproducing an institution.” In this light, the project that #CommunicationSoWhite highlights entails the critical work of decoding who is or is not part of this institution called “white men,” of being attentive to who we ourselves cite, which voices we let in and who we leave out. A sizable number of critical race scholars have spent years doing the work of tracking and correcting the continuing and conspicuous absence of Latinix, black, women of color, queer of color theories and historiographies within Communication and Media Studies.1 In just over a decade, we have seen set sail a veritable armada of special issues, published forums, and scholarly anthologies2 that attempt, precisely, to bring silenced voices in and, in so doing, to shake the canon up and out of its myopias and strategic ignorance. Let us remember that much of this work did not exist, indeed, it could not have existed, only a few years ago. These developing literatures have opened doors, bringing together a new generation of media and communication scholars invested, in a range of ways, in exposing the myth of whiteness, outing it as visible and specific, as one ethnicity among others and, thus, as a construct located in history, culture, and power. These efforts have also revealed how, as an institution, whiteness is quick to absorb, corral, and contain the impact of such outings and exposures. We see over and over again how the old guard slips back into old habits, easing itself, not by accident or mere oversight, to the comfort of the old boys’ club. We see, similarly, their persistence in positioning us as an add-on, an optional extra, a kind of appendage to the field. We are, as a consequence, always just arriving, and our arrival always precipitating one or another kind of disciplinary rupture—a ferment in the field, an epistemological crisis—always enacting a messy departure from what remains, steady and silent, at the center of the Communication canon. It is this eternal arriving, the “always newness” of race (Corey and Nakayama, 2012, p. 18), its alleged eccentricity and exogeny, that I wish to examine in this article. In light of the sheer volume of critiques that critical race scholars have offered against the whiteness of the canon, we cannot but conclude that the field remains so white because something/someone is deliberately keeping it so. In this light, I am interested in understanding the institutions as well as the mechanisms for reproducing those institutions, in the sense of Weheliye’s (2014) profoundly racialized and racializing assemblages, by which some works are assimilated into the canon and others left outside. I want to engage these questions through a counter-intuitive reading that takes us into the presumed white center of the canon. I offer an outline of a critical race archaeology of the field to consider some of the ways that questions of racism and prejudice are, in fact, inscribed into the DNA of the field. In order to work, this archaeology must connect points of motivated silence, deliberate moments of erasure, in order to reveal not the absence of race but, instead, what Charles Mills has termed “an epistemology of ignorance” (2007, p. 16). The idea, if you will indulge it, is to re-orient given accounts of the canon so that what comes into focus is a terrain of ethno-racial encounter, deliberate and strategic, which, I want to suggest, has marked the intellectual histories and institutional architectures of Communication as a field from the start. I do this heeding Chávez’s caution that “crafting intellectual history is always precarious” (2015, p. 162). Indeed, my training in Communication at a large midwestern research university in the late 1980s and early 1990s means that my take on intellectual history, any intellectual history, is necessarily whimsical, personal, arbitrary. There are things graduate school gave me and things it did not, lines of inquiry I stumbled into and others I did not. These accidents are part of what and how I know, and the particulars of my training mean that any intellectual history I am equipped to tell will gloss over some details and mangle others. I share the outline below, thus, in the spirit of a provocation, a starting point for a conversation, rather than a last word.

Although neither IP nor queer theory can be collapsed into monolithic ideologies or methodologies, both nonetheless are deeply concerned about the relationship between the tangible and the intangible.2 Our lived experience consists simultaneously of physical, massed things that we can see, hear, feel, touch, and taste as well as of concepts, ideas, philosophies, beliefs, and other abstractions. Queer theory and, increasingly, IP scholarship understand that the organization of these intangibles can shape the distribution of wealth, happiness, and political power in the physical world. Whose beliefs are recognized and revered, whose intellectual labor is commodified and marketed, and whose conceptions of the good life are met with state- backed punishment combine to shape the tangible, physical layout of our social environment. The regulation of the intangible aspects of culture moves certain physical bodies into certain geographic spaces and certain material objects into the hands of certain groups of people. And these material distributions in turn shape the production of ideas and culture.

Both queer theory and contemporary IP scholarship operate against intellectual traditions that too often sever the realm of the normative from the realm of the material. By overlooking the co-constituting role of material conditions and cultural norms, dominant conceptions of identity, innovation, and authorship all overlook the possibility of realigning systems of power through cultural and ideological intervention. This chapter examines the fusion of the tangible and intangible in both IP and queer theory, and it emphasizes the interplay among bodies, communities, and culture.

Cold Calculations Can one recognize what is made to exist beyond recognition—the remains of a missing queer or the identity of an unnamed trans woman whose body is never claimed? How do we measure the pain of burying generations of those we love and those we never knew? Rashawn Brazell’s brutal end asks these questions through its calculus of trauma. This kind of loss instructs a precarious organization, a kind of trace of that which was never there, a death that places into jeopardy the category of life itself. My aim here is not an investigation that simply confirms that which those living this proximity to death already know but to build out a vocabulary for a war of position that might collectively overwhelm the world in which it persists. The numbers, degrees, locations, kinds, types, and frequency of attacks— the statistical evidence that is meant to prove that a violation really occurred, are the legitimizing measures that dictate the ways we are obliged to understand harm. Data are translated into policy that calls for yet another study—the loop of bureaucratic knowledge ensures we know little. Indeed, statistics as an epistemological project may be another way the enormity of anti-trans/queer violence is disappeared. The trouble with thinking only or primarily statistically about violence is both a theoretical and a material trap. Although statistical evidence is assumed to account for rates of occurrence and severity, statistics seem to have a way of ensuring that Rashawn Brazell’s head is never found. Horrifically, because his head has yet to be recovered, the “actual” cause of death still cannot be officially determined. Not yet dead according to the parameters of the law but experienced as nothing other by his mother and community, Rashawn Brazell’s murder has for this reason, among others, never made it into “hate violence” statistics, which confirms the law’s anti-Black and anti-queer functionality.25 Further, the fbi, through the Criminal Justice Information Services (cjis) division, collects the only national data of targeted violence. Their database contains categories for religious, racial, and disability “bias,” and antihomosexual (male and female), anti-bisexual, and anti-heterosexual incidents (for 2017, thirty-two “anti-homosexual” and 106 “anti-transgender” incidents were reported).26 This report is optional for local jurisdictions, and 2017 recorded only 119 incidents based on “gender identity,” consisting of infractions ranging from vandalism to murder, and only sixty-nine “victims” who experienced “multi-bias” incidents. It would seem misguided at best to suggest that the number 119 can really tell us anything about the work of anti-trans violence. Reported attacks on “out” trans/queer people like these data can, of course, only work as a swinging signifier for the incalculable referent of the actualized terror. This is not simply a numerical issue; it is a larger question of the friction between measures and effect. Not unlike the structuring lack produced by any representation that offers us, the viewer, the promise of the real, statistics can leave us with only a fragmented copy of what it might index.27 Reports on anti-trans/queer violence, such as those from the cjis, reproduce in tandem the impossibility of statistical completeness along with the actual loss of those that fall outside of accounting. The excesses of the official record also constitute it—the subaltern remains of that which can never enter into representation reminds us of the arresting horror of the ever-disappearing archive. Or, put another way, the quantitative limits of what gets recorded as anti-trans/queer violence cannot begin to apprehend the numbers of bodies that are collected off cold pavement and highway underpasses, nameless flesh whose stories of cruelty never find their way into an official account beyond a few scant notes in a police report of a body of a “man in a dress” discovered.28 Even when a murderer is not successful and there is a survivor who could enter the act into the official record, incidents are not often reported to the fbi or local police.29 Abolitionists remind us that the police are still among the largest perpetrators of racist anti-trans/queer harm, from sexual assaults and street harassment to imprisonment and murder.30 With the police or some other tentacle of the prison industrial complex, namely the fbi, as the only collection, processing, and reporting agency for such data, people’s resistance should come as no surprise. This apprehension lives within the collective consciousness that the legal system is organizationally indifferent, at best, toward survivors. Those with proximity to the system know by way of living the second order violation of becoming evidence for a district attorney whose singular aim is convictions.31

As with the sticky alchemy of all disciplinary lines, the canon has power because it accumulates to produce formations of knowledge. Given that some lines more than others are lines of privilege, it becomes possible to write off race, gender, queer scholarship as that “identity politics” stuff and, in turn, to define identity politics as distracting, divisive, infuriating. Lumped together and made synonymous with fragmentations in the field, critical race studies of media and communication emerge as a problem created by practitioners who emphasize “peripheral” rather than “core” issues, whose unfamiliarity and disinterest in knowledge “beyond their particular niche” ossifies to form “hyperspecialized” areas of expertise that are “of interest, mainly, to scholars also located in the same niches” (Pfau, 2008, p. 599). No doubt, for some, it is convenient to have white people do the speaking for brown and black people, and best when they do what Michelle Colpean and Rebecca Dingo identify as “drive-by race scholarship” (2018). But, as Gilroy notes, these economies also turn on reifications of “ethnic garb” that critical race studies of Communication must don—the more exotic and adventurous the cultural practices being studied, the more enthusiastic their reception within the academic institution (1993, p. 5; see also, Melamed, 2011). As institutional incentives for “diversity” and inclusion work in powerful ways to “determine whether we are hired or promoted” (Christian 1988, p. 67), some race or gender scholars now must be recognized as “experts” and “authorities,” rewarded with status and recognition. But within the terms of racial neoliberalism, it becomes possible to also say without facing much reproach: wait (...) we already have one of them. Do we really need another? I have been compelled, for most of my career, by questions about the architecture, politics, and power of knowledge. In various ways, my work tends to loop back to the ways that raced and gendered formations are baked into established grammars and canonical knowledges. Much of what I have written has focused on the ways that dominant discourses assume the characteristics and formidable power of “truth,” parading about as universal, even though they always speak from a particular point of view, centering a specific historical subject. Certainly, part of what the #CommunicationSoWhite preconference organized was a way to collectively refuse this racial order of things, these habits, as Kimberlé Crenshaw puts it, of wishful thinking and studied denials (1997, p. 97), that invariably imagine the historical subject as a white, western, hetero-patriarchal male, and which assume, with breathtaking certainty, that his experiences are always applicable and fully generalizable to the rest of us. Confronting the canon’s deliberate tendencies to not see race or to see race in only this or that way, part of our challenge is to find ways to unlearn the canon, to speak without constantly having to explain the formidable power of difference and alterity as it marks everyone’s lives—not just our own. Indeed, part of what I witnessed at #CommunicationSoWhite was a concerted collective effort to figure out how not to follow the official paths laid out for us. To quote Ahmed again, citation is how we leave a trail of where we have been and who helped us along the way. While writing her recent book, Living a Feminist Life (2017), Ahmed adopted a very strict citation policy. She did not cite any white men. By “white men,” she explains, she means “an institution, as well as the mechanisms for reproducing an institution.” In this light, the project that #CommunicationSoWhite highlights entails the critical work of decoding who is or is not part of this institution called “white men,” of being attentive to who we ourselves cite, which voices we let in and who we leave out. A sizable number of critical race scholars have spent years doing the work of tracking and correcting the continuing and conspicuous absence of Latinix, black, women of color, queer of color theories and historiographies within Communication and Media Studies.1 In just over a decade, we have seen set sail a veritable armada of special issues, published forums, and scholarly anthologies2 that attempt, precisely, to bring silenced voices in and, in so doing, to shake the canon up and out of its myopias and strategic ignorance. Let us remember that much of this work did not exist, indeed, it could not have existed, only a few years ago. These developing literatures have opened doors, bringing together a new generation of media and communication scholars invested, in a range of ways, in exposing the myth of whiteness, outing it as visible and specific, as one ethnicity among others and, thus, as a construct located in history, culture, and power. These efforts have also revealed how, as an institution, whiteness is quick to absorb, corral, and contain the impact of such outings and exposures. We see over and over again how the old guard slips back into old habits, easing itself, not by accident or mere oversight, to the comfort of the old boys’ club. We see, similarly, their persistence in positioning us as an add-on, an optional extra, a kind of appendage to the field. We are, as a consequence, always just arriving, and our arrival always precipitating one or another kind of disciplinary rupture—a ferment in the field, an epistemological crisis—always enacting a messy departure from what remains, steady and silent, at the center of the Communication canon. It is this eternal arriving, the “always newness” of race (Corey and Nakayama, 2012, p. 18), its alleged eccentricity and exogeny, that I wish to examine in this article. In light of the sheer volume of critiques that critical race scholars have offered against the whiteness of the canon, we cannot but conclude that the field remains so white because something/someone is deliberately keeping it so. In this light, I am interested in understanding the institutions as well as the mechanisms for reproducing those institutions, in the sense of Weheliye’s (2014) profoundly racialized and racializing assemblages, by which some works are assimilated into the canon and others left outside. I want to engage these questions through a counter-intuitive reading that takes us into the presumed white center of the canon. I offer an outline of a critical race archaeology of the field to consider some of the ways that questions of racism and prejudice are, in fact, inscribed into the DNA of the field. In order to work, this archaeology must connect points of motivated silence, deliberate moments of erasure, in order to reveal not the absence of race but, instead, what Charles Mills has termed “an epistemology of ignorance” (2007, p. 16). The idea, if you will indulge it, is to re-orient given accounts of the canon so that what comes into focus is a terrain of ethno-racial encounter, deliberate and strategic, which, I want to suggest, has marked the intellectual histories and institutional architectures of Communication as a field from the start. I do this heeding Chávez’s caution that “crafting intellectual history is always precarious” (2015, p. 162). Indeed, my training in Communication at a large midwestern research university in the late 1980s and early 1990s means that my take on intellectual history, any intellectual history, is necessarily whimsical, personal, arbitrary. There are things graduate school gave me and things it did not, lines of inquiry I stumbled into and others I did not. These accidents are part of what and how I know, and the particulars of my training mean that any intellectual history I am equipped to tell will gloss over some details and mangle others. I share the outline below, thus, in the spirit of a provocation, a starting point for a conversation, rather than a last word.

My point here is that the very arsenal designed to determine and to ascertain the truth of human difference already assumed Europeanness/whiteness as the universal measure, that is, as the bodily, mental, and societal actualization of universality. This has several consequences, the most relevant (to my argument here) being the occlusion of the latter as a term of comparison. More explicitly, economic differences resulting from hundreds of years of expropriating land and labor were attributed to racial and cultural difference. In racial knowledge, they become the effects of particular bodily arrangements, which are established as the causes for particular mental (moral and intellectual) traits, which are themselves expressed in the social configurations found across the globe. Put differently, both the anthropological and sociological versions of racial knowledge transform the consequences of hundreds years of colonial expropriation into the effects of efficient causes (the laws of nature) as they operate through human forms (bodies and societies). In sum, as a category of racial difference, blackness occludes the total violence necessary for this expropriation, a violence that was authorized by modern juridical forms—namely, colonial domination (conquest, displacement, and settlement) and property (enslavement). Nevertheless, blackness—precisely because of how, as an object of knowledge, it occludes these juridical modalities—has the capacity to unsettle the ethical program governed by determinacy, through exposing the violence that the latter refigures.

The Equation of Value

For the white subject to enter into the possibilities of language and judgement, blackness thus has to be discarded, thrown away. If lalangue is the result of a struggle between language and representation, and whiteness a struggle between logic and sophism, then what appears to link them is the advent into a decisionism that consists in the conclusion of a white community. First, the unconcealing-appearing of whiteness must be different from what is concealed as black to the point that the concealment consists in this difference and is a direct consequence of it. In section 3 of the logical time essay, “Discussion of the sophism,” Lacan distinguishes the imaginary mastery of knowledge from what the subject is led to deduce therefrom: that which is outside of the logical order of hesitation and revelation. Nevertheless, it seems to me that such a difference is posited only when the originary truth of analysis—not as a technique of decipherment but as an art of interpreting—is understood to no longer doubt itself in the world of signifiers. Second, because the very exclusion of blackness is what passes into the service of whiteness, what is unveiled as the judgement of exception is the discovery of a generalized logic of distrust that has race as its condition. Monstration reappears here but always in the form of a knowing in its relation to a non- me, and a black “is not” (n’est pas) that is the inseparable consequence of an in-difference to blackness in the freedom not to choose it. Sovereign mastery is thus inseparable from the ability of dispensing the value of judgement indifferently upon every blackened being—it is only the subject that is black “that gives their hesitation its definite import.”²⁸ Third, the definiteness of the appearance of the subject to the others who see [them] him as white refers to a still more decisive situation: to the incapacity of blackness to posit the subjection uncovered in, or by, it. From the instructions given by the prison warden, we readily deduce a choice based on equivalence. But in the subsequent narration no one has the option to choose the black disc, because the choice of the black disc consequently gives no one the authority or right to judgement. All authority belongs to the one who rightly chooses the white disc, for now he has the right to interpret, to exercise judgement; on the other hand, those who possess the black disc by right have no power of judgement. The equivalence of thought and negation in relation to blackness is here formulated by Lacan in a direct manner. This incapacity, according to Lacan’s explicit assertion, does not create this definiteness; it is limited to unconcealing it (the hesitation—which is more than a hesitation—by which being unconceals itself qua whiteness). It is impossible not to see here a paradox that strikes at the heart of psychoanalysis’s very principle: that it is psychoanalysis which provides definiteness to black non-being in its contingency, by which I mean the psychic import of not being black. By analyzing, and only in as much as the unconscious is shown to appear, is that import susceptible to being. And yet, here it has been conceded that what appears owes its existence not to the power of witnessing, since the power of witnessing is limited to recovering a phenomenality that preexists its seeing and that would not be able, therefore, to go beyond perception in a genuine ontological sense. No, here (and throughout Lacan’s corpus) it is the destiny of the signifier to both open and foreclose the very possibility of destination as judgement and/or meaning. Now, these three characteristics of the destining of the signifier—here briefly sketched but obviously decisive—are precisely those of the language that is founded upon the white concluding of the signifier and that, for this reason, we will call from now on the white logic of the unconscious. First, each word constitutive of this logic is different from the negative reality—different from the being (l’étoff e)—of the signifier each time it is invoked. Therefore, just as the defining conclusion- appearance reveals itself as indifferent to all that hesitates precisely because it differs from representation, this difference that separates itself from all that it designates (or sees itself as) black is the reason why each word of the language of the white world turns out to be hurrying on from this hesitant black referent. In an astonishing conclusion (to this essay on the necessity of a white conclusion), Lacan denounces classical syllogistic logic when he says that “it posits itself as assimilative of a barbarism” even in its universality.²⁹ In fact, by means of its hesitation to the sophism so designated, the logic of the signifier could just as well name something else, the word “white” being applied in this way to a confusing logic of difference that nothing (besides a racial convention, a racial nominalism) is able to dispel. Conversely, and always by virtue of the hesitation that is established between logic (signifier) and being (white), two different hesitations- conclusions are able to qualify such negativity. This is the situation that Lacan denounces as the universal barbarism of the syllogism by which man is assumed to know who he is and who he is not (i.e., not man, not white). But why, we must ask, does this knowledge and the image conserving it have to take on the form of an assurance to defend itself against the anguish and precariousness of not knowing—which Lacan refers to as the danger of being exposed as black? Solely because language cannot decide that which is not me—the black and he who is not human—solely because the signifier cannot itself penetrate into what each subject claims to say and about which—decisively or indecisively—it can only slander, imprison, delude, judge; accordingly language does not contain within itself the reality of which it speaks. Difference and conclusion are here only the consequence of this primary ontological insufficiency. But then, does not this third characteristic of the language of the unconscious obviously carry within itself the characteristic of the logic of the world—that is, the original and definitive incapacity of blackness to posit the reality that the unconscious unconceals but never creates? The most decisive characteristic of the language of the unconscious that humans speak, and that defines the not- all that cannot be said and is contained in this impotence, is also seemingly the sign of the impotence of lalangue (on which language depends).

All human communication requires interpretation (Habermas, 1985). A person initiating a linguistic exchange uses mechanical processes, mainly sounds or movements, in an attempt to convey a particular message, with a certain imagined meaning. Yet, they have no control over how the audience makes meaning of the message. Individuals on the other side of a communicative relationship receive sensory stimuli that their brain makes sense of through language, which, as a symbolic representation of the world, may hide as much as it reveals to the interpreter. Moreover, both parties have their own socially and psychologically constructed desires, investments, and motives, which may or not be apparent to one another, or even to themselves. The same applies to academic research and those who engage in its discursive construction. As a venue for human communication, all educational research is interpretive. Researchers endeavor to convey the meaning they make of surveys, interviews, and bodies of research literature. They also engage in conflicts over interpretation through their studies of social and education phenomena, conflicts that drive subsequent research paradigms along with the politics of research funding and publishing. Tensions over the racial meaning of things are ever-present in the production of educational research, which takes place in academic institutions that are organizationally divided not just along racial identity lines but moreover into ideological camps that wage interpretive battles over race. For those in the educational research community, none of this is breaking news. Rather, it is the stuff of normal, everyday talk in the hallways and offices of the academy. Thus, it is quite perplexing that educational researchers, who are clearly self-aware that they are immersed in daily struggles over racial interpretation, do not place central importance on hermeneutics, which is the study of the theories and methodologies of interpretation (Morrow 8c Brown, 1994), in debates about research methodology. Broadly, hermeneutical scholars seek to reveal the presuppositions that guide interpretive processes (Gallagher, 1992). Importantly, the field of hermeneutics, particularly in more critical approaches, instructs us that interpreters are typically not conscious of their hermeneutical presuppositions (Habermas, 1989), meaning that many tend to see interpretation as little more than “common sense” or “differences of opinion.” Why is the avoidance of hermeneutics so pervasive, even among those who might benefit from a critical study of it, such as those doing work in critical studies of race? What are the consequences of avoiding the study of hermeneutics in educational research, particularly as it relates to racial power? Who benefits from the avoidance of a critical approach to the interpretation of race in a white supremacist social system? Is this part of a white supremacist academic desire to constrain racial interpretations for fear that a focus on a critical version of a racial hermeneutics might let the proverbial “cat out of the bag” in the production of educational research? This chapter traces the intellectual lineage of hermeneutics, offers critical race hermeneutics (CRH) as theory and methodology, and applies CRH to education in ways that pedagogically models how researchers can engage in educational research anew. Background: hermeneutics and education Generally speaking, the present-absence of the field of hermeneutics in educational research, a situation where hermeneutics is implicitly practiced by everyone but explicitly addressed by almost no one, is concerning since the field studies schooling, an institution predicated, consciously or not, on hermeneutical theories and activities. In other words, hermeneutics in educational research is out of sight, and out of mind, whether the research focuses on race or not. Shaun Gallaghers (1992) Hermeneutics and Education is one of the few book-length theoretical studies of hermeneutics in educational theory and practice. As Gallagher argues, schooling is fundamentally hermeneutical (see also Leonardo, 2003). The everyday activities of schooling are largely based on learning to interpret texts discursively, which can include making meaning of written passages, mathematical equations, historical narratives, classroom dialogues, or everyday social interactions. Teachers act in ways to guide, or even control, how students learn not only to interpret texts but also what counts as “proper” meanings and “correct” interpretive approaches. Although race and structural white supremacy are not Gallaghers focus, it is easy to see how educational control over interpretation is chained to white racial power. From a critical lens, domination necessarily employs a hermeneutical imposition that regulates the interpretive process, ensuring that meanings that support the interests of the dominant group are legitimated over others (Leonardo, 2003; Leonardo & Allen, 2008; Roseboro, 2008). Gallagher’s discussion of the politics of hermeneutics in the classroom is instructive, even if constrained by an inattention to structural white supremacy. For example, Gallagher argues that conservative and moderate hermeneutics are the two most common approaches used in schools. In conservative hermeneutics, the educator teaches that the meaning-making process should be focused on “accurately” arriving at the “original intent” of the author, thus ascertaining the correct or commonly accepted interpretation (e.g., the intent of the “Founding Fathers” when interpreting the U.S. Constitution through an ideology of whiteness). Conservative hermeneutics often works to persuade students to think of authors’ alleged intentions as the (racialized) “natural order of things,” thus it often supports long-standing rationalizations of social inequalities as just (e.g., rationalizing racial hierarchies). Or, educators very often employ a moderate hermeneutics rooted in a phenomenological approach that emphasizes the relative nature of interpretation. In this mode, students are taught that interpretation is perspectival, that people have different cultures and experiences that shape how they understand texts, and that the goal of interpretation is to come to a consensus understanding, or a “fusing of horizons,” for making sense of and, moreover, evaluating current social interactions and group relations. However, Gallagher fails to problematize how conservative and moderate hermeneutics operate dialectically as the interpretive norm in schools, both working together hegemonically to exclude and occlude critical approaches to hermeneutics in the curriculum. In addition to an inattention to white supremacy, Gallagher problematically supports a moderate hermeneutical approach, one that leaves students without a sophisticated interpretation of how oppressive social structures, such as white supremacy, work through the nexus of discourse, ideology, and the unconscious in classroom and social dialogues. In fact, seemingly “open” dialogues rooted in moderate hermeneutics often become sites of further repression and injury due to an intentional pursuit of “consensus” (i.e., social stability due to alleged “slow-but-steady progress”) over the more revolutionary desire to profoundly interrogate the racial ideologies that constitute racial hierarchies, whether the dominant consent or not (see Leonardo & Porter, 2010). K-12 schools are not the only ones engaged in hermeneutical politics; so are the colleges of education that research them. In the post-Civil Rights Era, students and faculty of color have challenged research interpretations mired in an ideology of whiteness, thus increasing hermeneutical conflicts over racial meaning in the ivory tower (Collins, 1998). Sometimes those caught up in interpretations driven by structural white supremacy attempt to negate those making critical racial interpretations. Other times, those who are uncomfortable with critical racial interpretations become passive aggressive by becoming an “enforcer” of the normative rules of research methodology. For example, rather than more directly discussing their disagreement with the researchers critical racial interpretations, they instead resort to pedantic attempts to discredit the work by questioning the implementation of methods, such as sample sizes, search schemes for literature reviews, interview protocol questions, etc. (see Matias, 2019). While a critical race researcher’s work could benefit at times from improved process details, the enforcer’s intense preoccupation with methods is not proportionally in step with the overall level of the detail’s importance relative to other crucial aspects of the work, such as the racial insights that are made. Also, a critical race scholar may be told by a qualitative researcher, for example, that their critical race analyses are an “imposition on the data,” and thus on their participants, and not consistent with the subjectivist orientation of qualitative methodology. In this scenario, the rhetorical move of invoking the norms of methodology is an act that conceals the deeper problem around theories of interpretation and the important role they play in maintaining white supremacy through methodological silencing. Armed with a critical race approach to hermeneutics in educational research, critical race scholars would be more empowered to engage directly and meaningfully in methodological conflicts that are fundamentally hermeneutical. Moreover, much work is needed to develop a critical hermeneutical approach to race studies. The established field of critical hermeneutics provides many insights upon which to draw (Leonardo, 2004). Critical hermeneutics developed out of the larger field of critical theory, an insightful paradigm that developed in the 1930s (mainly to understand the rise of Nazism) that synthesizes Marx’s approach to social structures, Freuds notion of the unconscious, and Webers insights into the rationalization of status hierarchies (Jay, 1996). Critical hermeneutics seeks to intervene by exposing the problematic historical (and geographical) imaginaries often deployed to mystify interpretation (Thompson, 1981). However, it suffers from an inattention to structural white supremacy (see Allen, 2001; Leonardo, 2013; Mills, 1997). Conversely, while critical race theory clearly makes structural white supremacy its focus, it has not paid explicit attention to the field of hermeneutics, even though CRT often works implicitly to systematically reinterpret the word and the world through processes similar to critical hermeneutics. So, in this chapter I introduce critical race hermeneutics (CRH), which uses critical race theory (CRT) to revise the best aspects of critical hermeneutics, creating a methodology for the theoretical study of race and white supremacy in education. In short, CRH is a study of how communication is distorted by a white supremacist social structure, turning discursive exchanges into everyday forms of racialized material, psychic, and symbolic violence. It seeks to show how language and communication is a site of conflict and domination, a place where white supremacy not only operates ideologically but also where the structure of white supremacy is, itself, reproduced. CRH works to interpret, more so, reveal the unconscious of the objective reality of white supremacy in subjective forms.

Explaining her refusal, after escaping to the North, to purchase her freedom from the man who continued to claim her as his slave, Jacobs writes, “I knew the law would decide that I was his property, and would probably still give his daughter a claim to my children; but I regarded such laws as the regulations of robbers, who had no rights that I was bound to respect” (155). This opposition of a natural or moral law to the written law of the state establishes the basis for every form of antinomian practice. It subtends, as a consequence, resistance to law by the right and the left alike. As Rebecca Hill writes in an analysis of John Brown’s abolitionist fervor, “Scholars writing about John Brown in the 1970s connected his disturbing use of violence to the revolutionary left. Today’s historians are just as likely to compare the ‘antinomian’ Brown to right-wing evangelical Protestant militants, as represented by the anti-abortion terrorist Paul Hill.”72 The tension that elicits these seemingly antithetical historical comparisons is at least as old as Antigone, the text Lacan discusses in The Ethics of Psychoanalysis to illuminate the relation of drive and jouissance to the law.73 Antigone’s refusal of Creon’s decree that her brother remain unburied expresses, for Lacan, a tension between the state law wielded by Creon and the chthonic law, the law of the earth, that Antigone calls the unwritten law of gods more ancient than Zeus. Lacan explains as follows: “These are no longer laws, νόμοϛ [nomos], but a certain legality which is a consequence of the laws of the gods that are said to be αγραπτα [agrapta], which is translated as ‘unwritten.’ . . . Involved here is an invocation of something that is, in effect, of the order of the law, but which is not developed in any signifying chain.”74 This imperative, pertaining to “the order of the law” but unwritten, unarticulated, and unacknowledged within the order of signification, launches Antigone into “the field of the Other,” beyond the limits of the human.75 She thus fully assumes her responsibility to the Kantian moral law, whose requirements can never be satisfied by mere obedience to codified rules. Moral law remains αγραπτα because it is unspecified in advance—and all persons must formulate maxims to embody its categorical imperative. In this they become responsible both for it and to it at once. Such a law, as Kant understands it, drives the subject beyond itself, beyond, that is, the self invested in its formal coherence, its aesthetic unity, and toward the “immortal” self that sees such self-interest as pathological. If Lacan construes the death drive as leading us out of aestheticized selfhood, then that drive performs an education in the etymological sense of the term (from educere, “to lead out”) that opposes itself to the program of Schiller’s aesthetic education. It offers a radically different lesson in the subject’s relation to freedom, one it never ceases to repeat because one we can never learn. Insisting on the division between reality and the Real, the division that generates them both, the drive propels the subject beyond its imaginary coherence, beyond the limits of its desire, and so beyond the law of the state that regulates the good of the self in terms of the collectivity. Like the slave woman Jacobs describes as invested in a law superior to the president’s, Antigone appeals to an absolute authority, a Truth, beyond that of the state; and as the slave envisions the “queen of ’Merica” drawing her sword on the president, so Antigone opposes Creon’s law in the name of one unwritten.

[Lee Edelman, prof of english at tufts university, December 5, 2022, “Bad Education

Why Queer Theory Teaches Us Nothing”, Ch. 3, Duke University Press]//owen

Bioessentialism, or suggesting that social constructions are inherently biological, has contributed to stigma and discrimination of the queer community (Llorin & Zayhowski, 2023). This perpetuates the narrative that people who do not fit binary categories are “disordered.” Homosexuality was in the DSM-II until 1973 (American Psychiatric Association, 2013) and in the International Classification of Diseases (ICD-10) until 1990 (Cochran et al., 2014). The way that homosexuality has been treated as a “disorder” parallels the way race has been inappropriately pathologized. Racism, not race, leads to the different medical outcomes seen (Newman, 2022; Roberts, 2011), yet race continues to inappropriately guide various aspects of medical care leading to medical mistreatment (Vyas et al., 2020). Similar to the larger medical field, the genetics field has explored queerness as a pathological trait. Research studies looking for genetic associations with homosexuality by Hamer et al. (1993) have been heavily criticized as a tool for pathologization (Petersen, 1999; Schüklenk et al., 1997). Yet, we see an increase in this research (Bentz et al., 2008; Foreman et al., 2019; Ganna et al., 2019; Hamer, 2011; Polderman et al., 2018; Theisen et al., 2019), such as large genome-wide association studies being published to study genes associated with sexual orientations and transgender identities (Ganna et al., 2019; Theisen et al., 2019). While some LGBTQ+ people have expressed that this type of genetic testing could be validating or increase societal acceptance of queer identities, others have expressed concerns about how the testing has serious ethical concerns and could be used with malicious intent, including pathologizing queer identities, undermining reproductive rights, gatekeeping healthcare, and informing eugenic practices (Hammack-Aviran et al., 2022; Rajkovic et al., 2022). Anti-queer bias permeates clinical genetics and the larger medical field. We posit that providing just care for the queer community requires us to examine the anti-queer foundations endemic in genetics practices. Throughout this piece, we will explore how genetics contributes to the perpetuation of pathologization of queer identities and call for systemic changes in the genetics field. 1.1 Cisheteronormative norms embedded into the genetic counseling field Anti-queer biases have been integrated into the genetic counseling field since its inception. The first genetic counseling program was founded by Melissa Richter at Sarah Lawrence College in 1969. Sarah Lawrence College, an all-women's school until 1968, was chosen in order to “appeal to its core constituency, married women in their 30s with two to four children living at home” (Stern, 2009). Over half a century later, the demographic makeup of the field continues to be predominantly white, heterosexual, cisgender women (National Society of Genetic Counselors, 2022). In general, queer communities are underrepresented in the medical field and experience microaggressions and isolation similar to students of racial and ethnic minorities (Marcelin et al., 2019). Queer genetic counseling students have reported cisheteronormative training environments and admissions practices, and a hesitancy to discuss their queer identities with program faculty and peers (Chu et al., 2023; O'Sullivan et al., 2023). One study demonstrated genetic counselors' and genetic counseling students' have an implicit preference for heterosexual over homosexual people (Nathan et al., 2019). Queer patients have reported experiencing discrimination in genetics clinics, despite genetic counselors reporting comfort in working with them (Valentine et al., 2023). Eugenic sentiments were embedded into the conception of genetic counseling. Melissa Richter articulated that the creation of genetic counseling was needed to address “the increase of illnesses by inherited diseases; the sizable proportion of our population suffering from mental or emotional disturbances; and the problems created by overpopulation” (Richter, 1968). These justifications mirror eugenic ideologies which propagandized the need for sterilizations to mitigate overcrowding in institutions, targeting immigrants, Black people, Indigenous people, poor people, and disabled people (Lombardo, 2011). Eugenicists weaponized biology to deem homosexuality and gender nonconformity as traits needing to be fixed. In a speech given in 1970, renowned geneticist H.B. Glass noted the need to end congenital defects including “sex deviation” (Ordover, 2003). Medical practices have attempted to eliminate homosexuality through castration, conversion therapies, brain implants, and lobotomies (Ordover, 2003). The eugenic roots of genetic counseling must be understood in order to examine how practices are still perpetuated within the field today through its focus on eradicating disease.

A major recurring theme within every single interview, holding true when interviewing scholars, professionals, and activists alike, was the heavy distinction between the US Supreme Court’s nominal function, and its de facto function. Interviewees near-universally qualified the Court as a lawmaking institution, akin to a form of legislature. Positivist jurisprudence was usually recognized as a jurisprudential mode that would be preferable or even ideal for the 19 Supreme Court, but one that has not been adopted to any substantial degree. One legal advocate summed the matter up as follows: There’s what the Court claims to do and there’s what it actually does. And what it claims to do is exemplified by Chief Justice Roberts in his confirmation hearing, where he’s like, ‘I am the umpire, I just call shots as I see them, et cetera, et cetera.’ In practice, that is not really how the Supreme Court works. In practice, there is very real lawmaking. There is very real shifting of existing norms quite regularly. (C.P. Hoffman, Feb. 4th, 2022) Moreover, the Court’s function as a lawmaking body was broadly seen to be actively hostile to the queer community. One lawyer stated that “They are using their conservative majority not just to interpret the Constitution but set laws or define laws in a way that has a negative impact on a number of different communities or individuals.” That interviewee, as well as other legal professionals, noted repeatedly that current strategies of legal activism included restricting court cases to state and local courts, avoiding escalation to the Supreme Court whenever possible. This is because the Supreme Court is unlikely to rule in favor of the queer community, due in large part to its current political makeup. This dichotomy, in which the Supreme Court claims to make decisions objectively but appears to truly make them under bias and prejudice, could theoretically work in favor of the queer community rather than against them. However, interviewees list several factors which, in practice, have resulted in Court politicization usually harming queer causes. Justices’ lifetime tenure was a particularly substantial factor, as one professional lawyer stated: The younger generation of mainly attorneys that are coming up and those that will be on the court tend to skew more liberal and/or personal freedom, you know, understanding that everybody should be treated the same regardless of conservative or liberal views. (Interviewee 1, Jan. 21, 2022) 20 Lifetime tenure results in a court that can change only incrementally. This helped bring about conditions under which Supreme Court justices are broadly seen as entirely unrepresentative of the American public, which is a view held by almost all those who were interviewed, as that same lawyer outlined: I don't think that their opinions represent the majority of US citizens on a wide range of issues. Let's be honest, they're basically going to overturn Roe v. Wade, but 70% of the country doesn't have a problem with abortions. And that's just a statistical example. (Interviewee 1, Jan. 21, 2022) A second significant, repeating element seemed to be the Supreme Court’s independence from the rest of the federal government, or the lack thereof. One activist, when asked what mechanism created a divide between public opinion and the opinions of the justices, bluntly answered: “The court was packed by conservatives and a seat was stolen.” They further elaborated: “I wouldn't say that's specifically the justices’ fault. That's the fault of the previous administration.” This issue of legislative and Presidential interference in the Supreme Court was frequently tied to the problem of the Court’s politicization, with the Court being commonly seen as “almost an extension of the administrative sphere,” as one scholar put it. This politicization is closely associated with and even attributed to the queer community, as the community is seen as an “easy place to create wedge issues for people.” History of the Court and Community The bias of the Supreme Court and the failure of positivist jurisprudence are broadly seen as having become more pronounced over the past decades.

Queerness is a generative desiring; it is an evoking of the playful, unpredictable, capacious possibilities of being in bodies, expressing selves, and exploring intimacies.1 In a society of definitive meanings, where identities signify specific and predictable positions, queerness insists on the incompleteness of any one structure of organizing individuals and relationships.2 While the social order is diluted by narratives instructing how relationships form, evolve, and get hierarchized, queer relationalities reject the simplicity of common-sense assumptions; in their place creating a playground of love, care, and dependencies. Against the fantasy of the monogamous couples and their biological families, for example, queer peoples have developed hand-made relational configurations. They intermingle friendships, families, lovers, and partners; they render these categories flexible and allow the individuals to give them meanings based on their unique patterns of connection, communication, and communion.3 Queer peoples have metamorphosed sensuality, from a private act of coupled [*178] intimacy, into what can pervade across social relations and positions.4 Intimacies take shape between individuals who may not know each other s names, and in public spaces where privacy is carved out; sensuality becomes a part of body language between those who may not engage in sexual acts it structures one s disposition and gendered presentation. Intimacies turn into enactments of losing and gaining control, which stretch the definitions and functions of bodies.5 As an invitation to creation, queerness places a fundamental contradiction within the law, which seeks to provide[] the context for ending the story successfully. 6 Whereas the legal order is built upon the premise that a truth is necessary for ordering society, and functions through centralizing that truth, queerness refuses to organize [ ] desire[ ] . . . [even] refusing to speak in a single voice. 7 The tension between the fluid and constructive tendencies of queer worldmaking, against the stabilizing and regulatory matrix of the legal order, offers a beginning point for this article.8 From within this incommensurability, I will pull forth a conversation on the meaning and ideal of equality, particularly as it shapes the relational order of the society implicating how individuals perceive themselves and one another. [*179] The law enshrines and entrenches a unified narrative, a singularized network of meanings, as shared principles of the society. This is an ideal of american citizenship,9 a socialized identity based upon overarching value structures and ethical principles, anticipated to override all particularities.10 Specifically in the context of rights and liberties, the law relies upon the centralized narrative of citizenship.11 To make a claim for equality, a minoritarian group must create an image of themselves employing these normalized conditions of the society. In other words, the group seeking equality must bring themselves in a continuous formation with the dominant narrative of american citizenship what cannot be captured in this linguistic simplification is buried under a political silence; it can only be an excess but it will not be operational in the structuring of reality.12 The construction of identity-based claims with a reliance on the shared values of citizenry represent a fantasy of equality as sameness pretending that [differences] [*180] can be translated with no damage to the structure of meaning underlying the disputes. 13 Under this hegemonic approach to equality, there is a singular truth, the truth of the dominant civil society, and all variances are narrative modifications that can expand, but never undo this truth.14 Even as the introductory remarks show, an understanding of equality that relies upon a singularized narrative cannot sustain the possibilities of existence generated among queer collectivities. Instead, in a queer world order, equality would require allowing difference to produce its own meanings. This is not denouncing the impacts of the social and collective; on the contrary, creation always begins from the vocabulary, grammar, networks, and ideas that populate the social imaginary.15 Yet, rather than taking the particular ordering of these facets as immutable or essentially desirable, queerness recognizes their historical specificity and malleability. In turn, individuals shift away from being passive observers or reproducers of the social order, and take the stance of being willful subjects, those who can claim an agency to shift the forms and concurrently the names given to their bodies, relationships, and the purpose of their lives.16 Queer worldmaking is an act of survival embedded in creation.17 Where the dominant order has shunned away, if not actively violated, the existence of queer peoples,18 finding new names for bodies, coming together in dependent [*181] relationships, and visioning other orders through playing with sensualities is an insistence upon remaining alive, declaring one s worth, and retaining hope for futures of freedom.19 With the centrality of survival to queerness in mind, the unified narrative of the law comes across as inherently violent to those whose being and loving stray away from its demands.20 While liberties may be extended to those priorly denied their rights, the existences which lose their essence when translated into the central narrative will remain at the fringes and continue to be dehumanized.21 Approaching this persistence of inequality is not an unavoidable reality of living in a constitutional polity, but a choice we make in how we think about and organize the law, this article seeks to create a critical inquisition into the centralized relational order, including its forms and specifically its guiding values. In subsequent parts, the article will attempt to tear away the layered, historicized, and cultural assumptions that persist the societal narrative through its tensions with queer desires and dreams, and by unearthing its violent implications on Black communities, and its entrenched roots in colonial dispossession of Native communities. Racialized violence persists across the everyday of the american citizenry.22 Racialized inequality is never separate from the constructions of deviance and abnormality, which most directly bring to mind gendered, sexualized, hence relational variations.23 For [*182] a constructive critique, this paper will tie racialized violence to the encounters and values guiding the nations formation and persistence, in which race has functioned as the baseline historical sign of injury and its reparation, which structures the condition of possibility for modern identities and rights.24 In addition to the analytic and political convergences of queer, Black, and Native histories, just as queer peoples, Black and Native peoples insist on their existence against a social that do not wish for them to survive. They have possessed and have continued to grow their own cultures, their own ways of existing together, which as I will come to argue, transgress the unified fiction upheld by the law. To this end, they offer knowledge, wisdom, and hope to reach beyond the stifling constitutional polity.25 Starting these conversations from a point of relationships is nurturing, because they are personal, as much as always political. We rely upon relationships for sustaining ourselves, building our lives, and reaching towards our dreams. How we come together in intimate relationships and passing connections is the backbone of the society. And where the law can be taken as the story the nation tells of itself, organization of relationships in light of these stories implicate where we think we stand and who we think we can become.26

Gilden ’20 [Andrew Gilden, Associate Professor of Law at Williamette University; “Intellectual Property’s Queer Turn”; The Oxford Handbook of Law and Humanities, chpt 30, pp. 549-564, Oxford Handbooks, Oxford Academic; 01-08-2020; https://doi.org/10.1093/oxfordhb/9780190695620.001.0001; accessed 07-11-2024] dliang

Contemporary IP scholarship also grapples with an intellectual tradition that severs creativity and human expression from the social contexts in which they operate. Much IP theory has critiqued the romantic, classically liberal notion of creativity and authorship—that fully formed individuals act upon the world and make something new out of the raw materials they discover in a proverbial state of nature.10 In this view, creators may need the law to provide some legal assurances that their labor will not be appropriated without compensation or consent, but they don’t need anything else in order to engage in their craft—creativity is purely a “personal reaction of an individual upon nature.”11 IP scholars, even those expressly embracing moral rights theories, recognize the limits of such a romantic view of creativity. Creativity is an inherently social activity; what a creator does is tightly wound up in the domain of culturally available ideas, images, and texts, so any limits on the “raw material” of creativity (whether due to cost, law, or technology) will shape the possibilities of creative expression.12 Creativity does not exist without culture, and culture is never static, and accordingly IP scholarship now almost universally recognizes that creativity and culture build upon themselves, piecing themselves together as today’s creators build o their peers and predecessors to produce tomorrow’s cultural landscape.13

In the Anglo-American tradition, IP rights are primarily focused on economic privileges. This approach generally holds that IP rights incentivize creativity and the dissemination of creative works by providing authors with exclusive control over the exploitation of their works.176 This control is established through economic rights that include control of reproduction, adaptation, distribution, and public performance of a copyrighted work.177 On the other hand, moral rights—namely, rights reflecting authors’ associations and connections with their works—are deemed a negligible part of copyright law and are virtually non-existent in patents or design laws.178 Moral rights include the right to be recognized as the author (attribution) and the right to prevent any alterations to the work that are prejudicial to the author’s honor or reputation (integrity).179 There is a vast literature advocating for critical appraisals of IP’s focus on economic rights and utilitarian incentives and its disregard of moral rights. Rebecca Tushnet, for example, suggests that the focus on utilitarian incentives “results in a systematic disregard for non-market incentives,” which leads to an inaccurate view of creativity.180 Carys Craig suggests that the focus on economic rationality shifts authorship “from a situated, communicative act” to “an individual act that produces a commodifiable thing.”181 Yet economic rights currently remain the focus of copyright law, and moral rights remain largely negligible.182 As the U.S. Court of Appeals for the Second Circuit stated in Gilliam v. ABC, 183 “American copyright law, as presently written, does not recognize moral rights or provide a cause of action for their violation, since the law seeks to vindicate the economic, rather than the personal, rights of authors.”18 IP’s prioritization of economic utilitarianism over moral interests consolidates a cultural hierarchy according to which only the types of creativity and cultural exchange that lend themselves to economic exploitation are socially beneficial. Furthermore, by prioritizing economic rights, as Elizabeth Rosenblatt notes, “the system reflexively protects itself. It encumbers—both through discursive denigration and legal impediment—the upturning of this expressive hierarchy.”185 While queer creativity may have high economic potential in practice, queer creators tend not to exploit their works and instead engage in other means of recognition and exchange, such as gift exchange, attribution, and sharing.186 Additionally, economic utilitarianism is said to be associated with reason, whereas moral interests are said to be associated with emotions.187 This notion corresponds to the culturally entrenched and essentialist view that the queer mind, queer sexuality, and queer body (like the female mind, sexuality, and body) are sites of unreason that are unintelligible.188 It should be noted that, from a queer perspective, commodification and economic exploitation are not necessarily an undesired outcome. But this is beside the point. Given IP’s focus on economic exploitation, the questions are, What hierarchy is created by IP’s categorizations, and what implications for subjectivity exist beyond the immediate domain of producing or consuming intellectual works?189 Copyright subject matter: The Copyright Act includes a list of works in which “[c]opyright protection subsists.”190 This list includes literary, musical, dramatic, pictorial, audiovisual, and architectural works; pantomimes; and sound recordings.191 Other creative products such as cooking recipes, fashion designs, and needlework generally do not enjoy copyright protection.192 This means that certain types of creators enjoy copyright in their works, whereas other types of creators do not usually enjoy copyright in their works or at least face substantial hurdles in applying copyright to key aspects of their intellectual products.193 This is regardless of the fact that they may have invested much creativity and originality in their creative products.194 There is no compelling justification for providing copyright in songs but not in recipes, in photographs but not in needlework. Scholars have noted this contradiction and suggested various accounts, including historical explanations tracing this divide to powerful lobbying by certain guilds and groups,195 explanations based on a division of the senses (“higher” senses such as sight and hearing versus “lower” senses such as taste),196 and romanticism,197 as well as feminist critical appraisals (traditional “feminine” versus “masculine” crafts) and class-based critical explorations (e.g., working-class versus higher-class crafts and pastimes).198 From a queer-theoretical perspective, it is important to note how these categorizations uphold a certain social order and cultural citizenship. These categories of copyright subject matter channel creators and users into separate classes that have broad social, financial, and cultural implications.199 There are important societal implications for being classified as an author, innovator, user, consumer, free rider, pirate, infringer, and thief.200 In other words, copyright’s categorizations do not simply govern types of cultural goods or market relations; they profoundly shape our social and cultural order. Copyright doctrines such as idea-expression, proprietary-public domain, economic-moral rights, and copyrightable-non-copyrightable subject matter have an additional significant effect in terms of cultural citizenship: they position queer culture as particularly vulnerable to appropriation by the culturally powerful. Whereas mainstream cultural products are “protected” and their owners given broad entitlement and a backing by the courts, many queer cultural products are not the subject matter of copyright; rather, they are labeled as public domain and up for grabs. When these works are grabbed, not only are they vulnerable to appropriation, but they may also be stripped of their queer nature. Vogue provides a solid example wherein cultural expressions of queer people of color have been appropriated, heteronormalized, and subsequently privatized. Emerging in Harlem ballrooms, vogue is a dance practiced both casually and formally in competitions wherein “houses” of queer and trans people of color compete in different themes and techniques (such as femme queen realness, executive realness).201 Voguing is quintessentially queer and Black and Latinx; it is sexual, sensual, and “a site of intersection for the categories of race, class, gender, and sexuality.”202 Yet voguing does not fit within the subject matter of copyright or its criteria for protection but is instead regarded as urban folklore that is in the public domain. And so in 1990 Madonna could take voguing, strip it (for the most part) of its queer, Black and Latinx, and sexualized nature, and privatize it, making the song “Vogue” her copyrighted property.203 This has important cultural implications beyond the proposition that copyright doctrine enables appropriation by the culturally powerful: once subcultural creative expressions such as voguing are removed from their context, privatized, and commercialized, they may be distracted (or redirected) from their natural development.204 Importantly, the argument here is strictly about IP doctrine. Madonna’s specific actions and her inspiration from/appropriation of queer culture remain a contested topic beyond this Article’s scope. On the one hand, Madonna has brought queer creative expressions into the mainstream, advancing queer visibility, employment opportunities, and, as Samantha Thrift notes, “acting as mediator between the heteronormative and the queer.”205 On the other hand, Madonna follows the typical pattern whereby the dominant group borrows from the subordinate group, strips the original expression from its meaning and context, and positions queer creators as “sideshows at which the dominant culture can gawk.”206 IP vocabulary: lastly, examining the vocabulary used in IP legislation, scholarship, and caselaw is helpful because terminology and textual narratives exert a great deal of power in entrenching epistemologies.207 Language is heavily involved in the construction of sexual identities and desire, and queer theory “takes very seriously the significance of words and the power of language.”208 Gendered nouns and pronouns and gendered speech styles are perhaps the more obvious examples of the normative association of language with sex and gender identities, yet discursive language and the use of stereotypically male or female genderlectal descriptions construct certain words and definitions as binary objects-subjects, male-female, hetero-homo.209 A notable example in IP is the use of the word “protection” to describe IP rights or the action of asserting IP rights. The word “protection,” as indicating what IP rights do or what they are about, is widely used in domestic American law and in international IP treaties and agreements. For example, the Berne Convention for the Protection of Literary and Artistic Works indicates from the outset that it is meant to protect works;210 the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) opens by stating that the agreement was established to “tak[e] into account the need to promote effective and adequate protection of intellectual property rights”;211 U.S. patent, copyright, and trademark laws all widely use “protection” to describe the action of IP rights, as do numerous court cases and academic texts.212

As shown earlier, brands often adopt activism strategies in response to customer demands to boost relevance and customer relationships (Tressoldi et al., 2023). Therefore, it is natural for them to prefer incorporating only those social movements into their marketing that they feel confident about executing successfully, ensuring consistent profitability. In recent years in particular, there has been a notable trend among brands applying social marketing to increasingly support the LGBTQ+ community (Champlin & Li, 2020). This marketing-centered advocacy is pivotal to the research of this thesis due to its ability to create compelling identity projects for consumers. The focus on this aspect is selected for its seamlessness and simplicity, which make it easier for companies to co-opt and monetize for their marketing strategies. Thus, the application of LGBTQ+ issues serves as a prime example of both commodification and commercialization within the contemporary branding landscape. It is clear that similarly as in the case of social marketing, its branch, i.e. LGBTQ+ support also started with genuine reasons and did not assume the commercial framework imposed by contemporary corporations. The LGBTQ+ movement, originating from the 1960s Stonewall riots, aimed to combat discrimination against non-heterosexual minority groups. Since then, it has evolved into a highly commercialized entity, with businesses aggressively targeting the LGBTQ+ consumer market, estimated to be worth a staggering amount of money. This marketization has occurred alongside the emergence of the LGBTQ+ social movement, creating a major arena for social and political engagement and contributing to the legitimization of LGBTQ+ rights, but unfortunately, also their exploitation to improve both the image and financial situation of the company (Bettany & Rowe, 2015). Notably, the impetus for organizations' endeavors to customize marketing strategies for LGBTQ+ consumers arises from the notable expansion of this community, which presents an enticing opportunity for companies seeking to attract new customers (Montecchi et al., 2023). Another aspect that Tressoldi et al. (2023) identify as a crucial determinant in opting for LGBTQ+ marketing is controversy. Activist brands frequently take positions on issues that may stir controversy in the market and among their consumers, including race, ethnicity, gender, or sexual orientation. However, in today's ubiquitous use of this technique, it can be viewed as a calculated, built-on-trusted-strategies form of controversy, only shocking because it once was. Nonetheless, exploiting provocative representations of the queer community has become a proven method for brands, especially since, as stated by Schopper et al.'s (2024), controversial ads are less likely to be accused of lacking authenticity. Brands that boldly incorporate LGBTQ+ themes in their advertisements are often perceived as having genuine intentions, unlike companies that approach LGBTQ+ advertising more cautiously, which are seen as less sincere. Moreover, the unmistakably commercial nature of corporate activities in LGBTQ+ endorsement is accentuated by the ultimate prioritization of the heteronormative client. This individual, who may not be directly involved or the primary target audience of this communication, remains the focal point. To mitigate potential backlash, brands often avoid explicit engagement with the queer community, instead incorporating subtle signs that cater to this demographic alongside other marketing slogans. Consequently, LGBTQ+ advocacy becomes just one of many marketing strategies, serving more as a commodity for the heteronormative community and the company's own benefits than for the LGBTQ+ community itself (Tressoldi et al., 2023). To this end, analyzing the theoretical aspect of brands using queer marketing without primarily targeting the LGBTQ+ community but serving broader strategic objectives is crucial, as it provides an academic foundation for drawing empirical conclusions about companies' activities.

This Article adds a new critical lens—that of queer analysis—to appraise IP, arguing that IP law and doctrine create a power matrix and cultural order that systematically subjugate certain cultural expressions and creators. IP produces a hierarchy of cultural categorizations that, in turn, channels groups and individuals into a hierarchal social order. More specifically, a queer analysis of IP law asserts that IP constructs creative production as a heteronormative endeavor, abetting the institutionalization of heteronormativity as the dominant cultural format in popular culture and the marginalization of alternative sexual, gendered, and intersectional cultural expressions, resulting in a cultural and a social hierarchy. IP law does so through doctrines that disadvantage queer cultural expressions, such as the categorization of certain queer creative expressions as folklore that is not copyrightable, and through sex-negative and queer-negative attitudes in courts—for instance, in courts’ reluctance to apply fair use provisions for cases involving the use of copyrighted material in sexualized or genderqueer contexts.8 At the same time, a queer analysis of IP also offers a new understanding of the relationship between IP law, mainstream culture, and counter-mainstream culture. The relationship between IP and queer creativity (and other countercultural expressions), this Article argues, is deeper and more complex than meets the eye: queer cultural production is often grounded in the rejection of IP’s concepts, rules, and aesthetics. So, while IP law structures hegemonic notions of cultural production, it simultaneously defines a field of marginal cultural production. Similarly, queer creativity often engages directly with mainstream works (which are often under copyright), transforming, rewriting, and “queering” mainstream culture. A quick clarification of what a queer analysis encompasses can be helpful at this point. While queer theory resists definitions, viewing “queer” as a fluid, plural, and continually negotiated term,9 it is, as Andrew Gilden observes, profoundly “concerned about the relationship between the tangible and the intangible,” much like IP theory.10 Queer theory understands that the organization of intangible things, such as what we see, feel, and touch, shapes our social landscape and the distribution of wealth, happiness, and political power.11 Queer theory maintains that sex and gender are produced through certain patterns that are associated with certain social labels; thus, they are essentially performative.12 A queer analysis would therefore endeavor “to reveal and disrupt narratives, conventions, institutions, and identities” that are structured around sex and sexuality and identify the ways in which certain kinds of stylizations of gender and sexuality are foregrounded and rewarded.13 A queer exploration of IP law then would aim to investigate how IP foregrounds sexuality, normativity, and gender stylizations in cultural production and ask questions such as how the sexualization and gendering of certain methodologies, occupations, creative works, or the cultural landscape result in bestowing or withholding certain legal or social privileges.14 The term “queer” also encompasses a sociological component that is related to, but not to be confused with, queer theory. Queer can also be a (personal or collective) identity, and queer sites can be seen as places where “traditional social correlations of bodies, desires, kinship, and temporality come apart and new ways of imagining their intersections come to the surface.”15 Often, in these sites, queer creativity and culture flourish.

Recent years, however, have seen a growing body of scholarship that engages in critical appraisal of IP through various lenses, including post-colonial, race, class, and feminist theories.1 These studies illustrate that IP’s procedural and substantive rules are far from neutral: for example, by unmasking the ways in which the IP. public domain binary functions more in the interests of traditional property owners than in the interests of commoners;2 by demonstrating how the idea-expression dichotomy in copyright emboldened the mass appropriation of the work of Black artists and inventors;3 or by demonstrating how copyright law doctrines allow a privileged cultural class to silence challenges to copyright’s value hierarchy.4 Other studies demonstrate how patent law’s doctrines display gendered characteristics,5 analyze the cultural gendering of copyright’s fair use doctrine,6 orillustrate how rules regarding “immorality” in trademarks fetishize LGBTQ+ sexualities.7 This Article adds a new critical lens—that of queer analysis—to appraise IP, arguing that IP law and doctrine create a power matrix and cultural order that systematically subjugate certain cultural expressions and creators. IP produces a hierarchy of cultural categorizations that, in turn, channels groups and individuals into a hierarchal social order. More specifically, a queer analysis of IP law asserts that IP constructs creative production as a heteronormative endeavor, abetting the institutionalization of heteronormativity as the dominant cultural format in popular culture and the marginalization of alternative sexual, gendered, and intersectional cultural expressions, resulting in a cultural and a social hierarchy. IP law does so through doctrines that disadvantage queer cultural expressions, such as the categorization of certain queer creative expressions as folklore that is not copyrightable, and through sex-negative and queer-negative attitudes in courts—for instance, in courts’ reluctance to apply fair use provisions for cases involving the use of copyrighted material in sexualized or genderqueer contexts.8 At the same time, a queer analysis of IP also offers a new understanding of the relationship between IP law, mainstream culture, and counter-mainstream culture. The relationship between IP and queer creativity (and other countercultural expressions), this Article argues, is deeper and more complex than meets the eye: queer cultural production is often grounded in the rejection of IP’s concepts, rules, and aesthetics. So, while IP law structures hegemonic notions of cultural production, it simultaneously defines a field of marginal cultural production. Similarly, queer creativity often engages directly with mainstream works (which are often under copyright), transforming, rewriting, and “queering” mainstream culture. A quick clarification of what a queer analysis encompasses can be helpful at this point. While queer theory resists definitions, viewing “queer” as a fluid, plural, and continually negotiated term,9 it is, as Andrew Gilden observes, profoundly “concerned about the relationship between the tangible and the intangible,” much like IP theory.10 Queer theory understands that the organization of intangible things, such as what we see, feel, and touch, shapes our social landscape and the distribution of wealth, happiness, and political power.11 Queer theory maintains that sex and gender are produced through certain patterns that are associated with certain social labels; thus, they are essentially performative.12 A queer analysis would therefore endeavor “to reveal and disrupt narratives, conventions, institutions, and identities” that are structured around sex and sexuality and identify the ways in which certain kinds of stylizations of gender and sexuality are foregrounded and rewarded.13 A queer exploration of IP law then would aim to investigate how IP foregrounds sexuality, normativity, and gender stylizations in cultural production and ask questions such as how the sexualization and gendering of certain methodologies, occupations, creative works, or the cultural landscape result in bestowing or withholding certain legal or social privileges.14 The term “queer” also encompasses a sociological component that is related to, but not to be confused with, queer theory. Queer can also be a (personal or collective) identity, and queer sites can be seen as places where “traditional social correlations of bodies, desires, kinship, and temporality come apart and new ways of imagining their intersections come to the surface.”15 Often, in these sites, queer creativity and culture flourish. Heteronormativity is another term in need of some clarification. It may incorporate several different interrelated dimensions, including sexuality—heteronormativity positions non-hetero sexualities as invisible or deviant;16 patriarchal gender norms—heteronormativity is a constituent dimension of female-male socialization and patriarchal gender roles, rendering sex and desire as normative or non-normative accordingly;17 power matrix—heteronormativity joins a myriad of systematic oppressions at different intersections such as race, class, gender, origin, and sexuality.18 This typology, suggesting several dimensions and manifestations of heteronormativity, is useful for a queer analysis of IP, as the typology indicates that heteronormativity is not merely the privilege of heterosexuality or the alignment of biological sex, sexuality, and gender, but a pervasive force through which rules are linked to social hierarchies.19 Applying queer theory to analyze IP would therefore focus on revealing how IP doctrine foregrounds heteronormative cultural and creative expression, privileging a certain dominant culture and subjugating queer culture and queer communities and individuals. Yet another useful methodology for queering IP is to explore and explain communities and sites in which queer creativity thrives. Exploring such domains can help in identifying what elements might be essential for queer cultural and creative expressions to thrive, the relationship between IP law and queer creativity, and whether and how these domains of queer creativity challenge IP. In addition, this methodology provides important evidence in an exploration of the alignment between queer theory and queer cultural expression in practice. This approach adds a new and important element to commonly used methodologies, as it engages directly with queer creative sites, asking how these domains are constructed and linking the knowledge gained from this inquiry back to the theoretical queer analysis of IP. Notable examples of creative domains where queer creativity thrives

Bey ’22 [Marqius Bey, Assistant Professor of African American Studies and English at Northwestern University; “Cistem Failure: Essays on Blackness and Cisgender”; Duke University Press; 08-2022; doi.org/10.2307/j.ctv2rr3g52; accessed via University of Michigan libraries, 07-17-2024] dliang

What I wish for deeply is something we don’t have yet that might emerge from a failure to inherit the lineage bestowed upon us. That which might emerge if we manage to cultivate a conditional refusal of cis alignment and the violences therein, the thing that emerges when its condition of possibility is a constant refusal of what has come to be coercively demanded of us. The question that presents itself to us, in this initial moment, is why? Why do such a thing, why fail to inherit what we are told is our birthright, why give up that which gives us over to the world as the powerful, competent beasts we quite vigorously want to be, be, be?

A 1998 British Broadcasting Channel production. Text appears on the screen: London 1940. The four children walk up to their home on break from school for the holidays, greeted by the prim and proper Mrs. Macready, wizened hair and gray (or grey; this is, after all, the UK) suit, standing regal, bespectacled. The children leave their bags just beyond the entrance and are told that the servants will take them. “That is their function,” Mrs. Macready says. “One must not be deprived of their function. Everyone has their part to play.” I think: there are some whose function is one that disallows others’ functioning, some whose function is cast outward toward disabling others’ flourishing. The part some have to play, a part they decided for themselves and a part that, like bossy children wanting the biggest slice of cake, puts them at the pinnacle of the social order, is a part that might cause trepidation. And fear. And harm. What happens when your part is frightening to you, a part given to you that you do not want, a part that others who have had your part demand you represent flawlessly or you get kicked out of the performance for good, a part that is not only frightening but does not fit you, a part that you have grown out of or never fit to begin with or know fits no one and makes others deeply, deeply uncomfortable, unable to play their parts, unable to act anymore, unable?

The patriarch comes into the room. The Professor. He instructs the servants to bring the children’s meals to their rooms, for they do not wish to converse with an old man upon their arrival. Mrs. Macready disagrees, thinking it improper to dine in one’s sleeping quarters. All things must have their proper place, I suppose. The Professor puts his foot down. “Whatever you say, Professor. Your word is law,” she responds, demurely. And law it is, Professor. Your word, as patriarch, is quite literally law, a discursive and juridical mandate emerging from patriarchal power codified over eras of, indeed, the discursive and juridical mandate that has emerged from you.