IPR proposes a dichotomy of the private and public domain. The public domain acts as a “home” for the knowledge that is uncapable of being unidentified and capitalized; in actuality, this is a false façade that enables the control and fetishizes of queer creativity and queer bodies. In addition, this dichotomy allows for heteronormativity concepts to capitalize off the labor that queer folk do because queer labor is deemed as not classifiable.

IP’s rules and doctrines, its categorizations, and its vocabulary create a certain legal order that generates a social and cultural order. That is, far beyond the immediate domain of producing and consuming cultural goods, IP produces social and cultural hierarchies.144 A queer analysis of IP seeks to expose how IP doctrine and vocabulary manufacture a heteronormative cultural hierarchy. Accordingly, this Part evaluates from a queer-theoretical perspective the idea-expression, proprietary-public domain, economic-moral rights, and copyrightable-non-copyrightable subject matter divides, as well as IP’s “protection” of IP rights terminology. This Part starts with a brief overview of each of these doctrines and introduces some of the current critical appraisals thereof. It then proceeds to a queer reading of each of these doctrines, exploring how these doctrines entrench certain (heteronormative) ontologies of identity in popular culture, resulting in a cultural and social hierarchy.145 The idea-expression dichotomy: The idea-expression dichotomy is a long-established principle in copyright. It limits the scope of copyright to expressions or manifestations of an idea, but not to the idea itself. While an author may enjoy exclusivity and control in their work, they cannot control the ideas abstracted from the work.146 This creates a legal divide: expressions may be subject to copyright, while ideas belong in the public domain. So, for example, while an author of a book providing gardening advice holds the exclusive rights to print or publish their book, any person may freely practice the information that the book describes or illustrates, and any person may write a (different) book providing gardening advice.147 The rationale for the uncopyrightability of ideas is said to be twofold: First, ideas are intangible and as such cannot be the basis of a property interest; for an idea to be capable of attracting proprietary privilege, it must be capable of being identified. This reasoning is reflected in multiple court decisions, as well as in the legislative hearings for the Copyright Act of 1909, which state that “there can be no property in thoughts, conceptions, ideas, sentiments, etc., apart from their association, is clear, for they are then incapable of being identified or owned exclusively.”148 Second, an idea-expression divide is said to reflect the balancing of society’s interest in the free flow of information with authors’ property interests.149 Excluding expressions but not ideas is said to adequately incentivize authors to create and disseminate their works while leaving the building blocks of communication, culture, innovation, and expression free from monopolization.150 Various IP scholars have pointed to several problems with the idea expression divide, noting, for example, the following observations: that it is amorphous and creates a chilling effect on expressions that may be constitutionally protected by the First Amendment,151 that it fails to ensure that ideas freely circulate in the marketplace,152 that in reality there are no “expressionless ideas” and no “idealess expressions,”153 or that such a distinction inherently invokes value judgments on the part of judges adjudicating copyright infringement cases.154 Yet the idea-expression divide remains the “first axiom of copyright.”155 The proprietary-public domain distinction: IP laws distinguish between creative works and inventions that enjoy IP rights and those that do not. The latter are said to belong in the public domain.156 Like the term “property,” the term “public domain” is protean. There is, as Edward Lee notes, “a firestorm of debate about the public domain in intellectual property law.”157 Legal scholarship describes the public domain in various ways, suggesting it is comprised of the residual leftovers after property rights have taken their share or expired,158 the “outside” of IP,159 a measure to correct market failure,160 a restraint on government power,161 a means and the end “to promote the progress of science,”162 or a “home” where people can find inspiration and muse.163 Regardless of exact definition, the central notion common to most definitions of the public domain is that it is free and accessible to all.164 A rich and robust public domain, the argument goes, is key to continued economic growth and social welfare.165 Several IP scholars, however, have noted that the description of the public domain as a resource that is free and accessible to all is a romantic conviction that may be far from reality. Anupam Chander and Madhavi Sunder, for example, argue that some groups—often those from powerful social and economic classes—are better positioned to exploit and enjoy the resources in the public domain.166 These scholars contend that the binary rhetoric of proprietary ownership versus the public domain creates an illusion according to which the public domain is egalitarian, free, and open to all.167 Yet this binary masks the ways in which the public domain often works in the interests of traditional property owners to disadvantage and subordinate disempowered groups, impairs efforts of disempowered groups to assert agency and personhood, and may even reduce them to “mere objects, or someone else’s property.”168 Similarly, Ruth Okediji shows that resistance to granting rights in Indigenous peoples’ knowledge is many times justified, at least partly, by reference to safeguarding the public domain.169 A queer analysis would suggest that private-public and property common distinctions produce notions of cultural citizenship centered on a heteronormative status quo. Recognizing Western and “masculine” creative expressions as the types of works that attract proprietary rights and value and placing Indigenous and “feminine” creative expressions, such as traditional knowledge or cooking recipes, in the public domain, IP law constitutes the feminine and non-Western as “abject beings” who form the constitutive outside.170 In other words, certain types of creative expression, such as Indigenous and “feminine” creativity, become categorically public, indicting these communities and individual members thereof as cultural outsiders. Equally, both sides of the private-public divide reinforce notions of heteronormative domination over queer cultural expressions. Rebecca Tushnet notes that patriarchy makes fair game of women in the public sphere and keeps them under control in the private sphere.171 The same could be said of queer bodies and queer creativity: they are, at the same time, fair game in the public sphere and kept under control in the private sphere. Queers’ and LGBT+ people’s attempts to express their sexuality, circumstances, desires, and fetishes are often regarded as “shameful and inappropriate contamination of the public with what should be kept secret.”172 Furthermore, the private-public divide is a constitutive feature of the closet.173 The closet structures queer sexuality and identity in relation to binaries of secrecy and disclosure and of private and public.174 The closet structures queer lives in a way that limits the publicity of queer voices while allowing the heteronormative majority to benefit from queer creators’ creative labor.