Copyright reform in enforcement, intellectual property education schemes, and meditation with queer artists are policy proposals that let queer arts survive

Queer arts are uniquely important to queer identities, rainbow youth empowerment, and the LGBTQ+ civil rights movement because unqualified acceptance and intentional inclusion only come through societal acknowledgment and deepening empathy. Acknowledgment and empathy manifest in queer representation in art and media. While we vogue our hands, pat our feet, laugh our stomachs into knots, and wipe tears from our eyes, queer actors, musicians, comedians, painters, and fashionistas are imperceptibly sensitizing us to the complexities of the human sexuality spectrum and structuring our societal conversations about power, love, and the law. Most importantly, queer youth who are most at risk for suicide, homelessness, exposure to illicit drugs, and childhood physical, psychological, and sexual abuse will lose hope when the queer artists they emulate get picked off by major record labels and media conglomerates. Queer kids will never know that “It Gets Better” with time, intentional community, and self-actualization. If rightsholders were to exercise their rights to enjoin drag, ballroom, and queer music performances, we’d lose more than art.

LGBTQ+ arts are now experiencing what rappers endured in the late ‘80s and ‘90s — the dead ends of the copyright system. These artists depend on de facto non-enforcement of our Chapter 17 of the United States Code to survive, and they survive until they thrive. Once arts start thriving, the media conglomerates want their financial cut of outsider arts. As drag, ballroom, and bounce performances move from nighttime shows in dark smokey clubs to Apple Music, Spotify, and prime-time streaming services, queer art grows increasingly susceptible to DCMA takedowns and performance injunctions to stop queer artists from making more money on their copyrights than the conglomerates do.

But All Hope Is Not Lost!

Here are three policy ideas worth exploring for the survival of queer arts:

Let’s empower queer artists with knowledge about the copyright landscape so that they can make informed decisions about how they reprise and revive works. Young artists sharing their work via social media are susceptible to DMCA takedowns because they are not familiar with the technical statutory contours of fair use, or how to emphasize uncopyrightable aspects of original works. This education effort can help queer artists make artistic decisions and publicity choices to navigate around or through copyright allegations. Education efforts may even ignite a conversation about newer, more agile IP rights that spur more creation and more sharing.

Corporate rightsholders should continue strategic non-enforcement and, when appropriate, pursue mediated arbitrations with queer artists. The asymmetries between complex media conglomerates that hold the rights to nearly all mainstream original works and the regional drag queens, young ballroom walkers, and home-grown bounce MCs who borrow from those works induce a corporate abuse of power that chills free artistic exercise and further marginalizes queer culture. Instead, they can be good corporate citizens and recognize queer cultures’ inherent essence to American culture. Instead of immediately resorting to litigation or the blunt instrument of take-downs, rights-holding media companies can also pursue voluntary alternative dispute resolution (ADR) methods. These forms of dispute resolution can be unfair when they are forced on people, when the adjudicator applies rules that systematically favor one side (typically the more powerful one), or when the process ends up biased towards the party that pays the expenses. But it can be done right, too, and the platforms that queer artists use can help set up a process that is fair to users and to rightsholders.Mediation is one form of ADR where the parties, guided by a neutral third party (“mediator”), discuss their issues, interests, understandings, and feelings in a private forum. In mediations, large copyright holders and queer artists can share information and explore innovative resolutions beyond rote court-adjudicated remedies like enjoining future performances and engorgement of profits. Disputing parties generally reach a “sustainable, voluntary, and nonbinding agreement” that can be challenged in court if not honored by both parties. Failing that, other forms of ADR such as mediation-arbitration (med-arb) can be appropriate. These processes can allow artists to tell their story and make their cases in nontraditional ways. In recent years, mediators have designed [cultural and] “artistic interventions [that] provide a setting conducive to dialogue… to circumvent highly-charged patterns of discourse.” Perhaps ADR can move us from compromise-created incentives to incentive-created compromises that protect queer arts from retribution and marginalization.

Corporate rightsholders should discover, feature, and employ queer artists equitably. Media companies should increase efforts to scout, showcase, and fairly compensate queer artists. Lucrative contracts would offer queer artists public presence and financial viability to escape persecution and even transform the communities that once persecuted them. (See bounce artist Big Freedia’s “Bounce Up” charity organization that improves the lives of New Orleans children. See also Rihanna sponsoring the 2019 Latex Ball’s face category with Fenty Beauty makeup products and funding the $10,000 grand prize.) Instead of targeting people who are disproportionately subjected to physical, mental, and emotional abuse as well as financial exclusion and legally un-cognizeable systemic and individual microaggressions, corporations can stand in the gap and empower queer artists by hiring them and working with them.

As queer people assume their rightful places on America’s mainstream stages, and as queer rights evolve beyond tokenistic recognition, our copyright regime could use a good drag, a hot vogue, and a hard bounce to catch up to queer imaginations.