Queerness is socially and linguistically constructed through iterative process of engaging in ideas, texts, and cultural norms. Only combining the tangible with the intangible is capable of generating the correct ideology for realigning political systems.

INTELLECTUAL property (IP) and queer theory may seem like strange bedfellows. Queer theory typically is associated with questions of sexuality, gender norms, and the performative nature of identity, while IP is typically associated with control over markets and incentivizing large-scale, typically corporately owned, creativity and innovation. Queer theory prizes indeterminacy, contingency, and social construction, while IP emphasizes stability, predictability, and the steady march toward “progress.” Yet queer theory both holds useful explanatory power for many contemporary IP disputes and pushes IP scholars to even more deeply interrogate the cultures of creativity and innovation that lie within their jurisdictions. Although queer theory is often about sex, gender, and identity, its insights can be useful in questioning and critiquing ideology more broadly : What are the norms that structure our social order? How do those norms come to be experienced as natural? How can we reveal and dismantle these constructions? A queer theoretic lens on IP provides a framework for understanding the role of IP in the production of our shared cultural norms, and the role of our shared norms in the production of the ideas, texts, and technologies protected by IP. 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. 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 commodifed 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. IP scholars traditionally divide into two main camps: (1) utilitarians, who emphasize that IP is justifiable (if at all) as an economic incentive to engage in creative/innovative pursuits, with an eye toward e􀁽ciency and increased social welfare; and (2) deontologists, who—drawing from Enlightenment philosophies— emphasize the inherent fairness of giving creators control over the fruits of their labor and free will. In recent years, each camp has accused the other of failing to suffciently ground their claims in empirical evidence and of unduly downplaying a range of other important values, such as free speech and distributive justice.3 Against this traditional backdrop, a growing body of recent IP scholarship has increasingly eschewed big, “top-down” explanatory theories that have dominated IP, and has grounded IP discussions in the needs and experiences of everyday individuals whose social, cultural, and economic interactions are shaped by the varying presence and absence of exclusive rights in intellectual goods. Although IP scholarship is almost never framed in terms of a queer orientation, and only occasionally and hesitantly in terms of broader postmodern theories, recent shifts in IP scholarship reveal some important linkages between queer approaches to subjectivity and power and IP’s increasing interest in social norms, dissent, and cultural transmission. The following sections will sketch out the potential for some queer turns in IP theory. One of queer theory’s main contributions has been to rethink the ways in which sexuality and gender are constituted as foundational human identity categories. Rather than think of sexual orientation or gender identity as, on one hand, the product of either innate genetic makeup or deep-seated psychological characteristics or, on the other, a conscious decision to engage in certain sexual activities, queer interventions largely cast aside the nature/nurture debate to show that identity and culture are mutually constituted. In this formulation, sex and gender are performative: they are produced through patterns of activity that become tightly associated with certain social labels. From the moment of birth, human bodies run through a gauntlet of social norms that call those bodies certain things (e.g., “she”), that allow them do certain things (e.g., wear dresses), while exposing them to a tiny sliver of humanity’s many di􀁼erent ways of living. Social categories often treated as universal and presocial, such as “woman” or “homosexual,” are instead the product of a particular historical, cultural, and political context. Although the body and the identities that attach to it may be experienced as existing prior to and independent of social environments— as universal truths projecting themselves into a particular public sphere—queer scholarship has recognized that social environment and subjectivity are inextricable from each other. 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. 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.” 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. 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. Although such “postmodern” turns away from the liberal subject are often dismissed among legal theorists for being overly abstract and academic, both of the above scholarly shifts have been accompanied not just by theory and jargon, but also by a pronounced focus on the experiences of individuals actually living with norms of gender and sexuality (in queer theory) and creativity and copying (in IP theory). In the queer context, drag performances, locker rooms, late-night lesbian bars, S&M clubs, and many other venues have been investigated as sites where the traditional social correlations of bodies, desires, kinship, and temporality come apart and new ways of imagining their intersections come to the surface. In the IP context, scholars have studied an incredibly diverse range of creative communities: clowns, fashion designers, stand-up comedians, chefs, open source programmers, craft brewers, roller derby contestants, and (again!) drag queens. These studies eschew grand explanatory theories of creativity and undermine the notion that encouraging creativity can ever be reduced to economic incentives. Instead, what emerges from these studies is that creativity is shaped by the very particular norms of the social environment in which they operate. Social norms (e.g., against copying jokes) can supplement or substitute for formal IP laws in regulating innovation, or the sense of belonging (e.g., to an open source community) can incentivize creative activities without any promise of financial reward. One’s identity as a clown or chef or derby girl is contingent upon a sense of being part of a particular social group and the incorporation of such norms into the creative process. IP scholarship shows that creative identity is the product of complex cultural landscape marked by particular social expectations about how one should or shouldn’t behave. Just as “one is not born, but rather becomes, a woman,” IP scholars have shown that one is not born, but rather becomes, a clown, chef, or derby girl complex cultural landscape marked by particular social expectations about how one should or shouldn’t behave. Just as “one is not born, but rather becomes, a woman,” IP scholars have shown that one is not born, but rather becomes, a clown, chef, or derby girl. These scholarly insights can have important implications for regulatory responses in each field. For law and sexuality, queer insights emphasize that sexual justice is not just about prohibiting the state and private businesses from expressly discriminating against people who already identify as lesbian, gay, bisexual, or any other sexual orientation. Instead, sexual identity development requires actual, achievable opportunities for individuals to interact with others, experiment with desires, and embody the categories they may ultimately embrace. For IP, fostering creativity is not just about providing financial incentives to get people o􀁼 their sofas but about facilitating the communities in which creativity takes place. Actual creators often want recognition and belonging—which are generally dismissed by positive IP law—and need access to a robust domain of cultural resources—which IP laws often directly foreclose. The liberal self comes into the world with all the resources they need; the situated subject feeds o􀁼 the opportunities available to them.