Semiotics comes first---signification overdetermines intellectual property.

Cultural perspectives on law are a growing part of contemporary legal scholarship and, in particular, semiotics has been argued in interdisciplinary legal scholarship on IP to be helpful in illuminating some of the intractable issues encountered in the laws governing copyright, trademarks and the right of publicity. The use of semiotics to interrogate IP laws is a relatively new concept that caught the attention of mainstream legal scholarship just over a decade ago when Barton Beebe published his seminal article ‘The Semiotic Analysis of Trademark Law’ in the UCLA Law Review.2 Prior to this, other legal scholars such as Rosemary Coombe, Rochelle Cooper Dreyfuss, Keith Aoki, and Michael Madow have applied a cultural studies critique to IP laws, but had not distinguished semiotics as an independent perspective in their writings.3 More recently, there is a healthy trend in US law reviews and the International Journal of the Semiotics of Law publishing articles that apply a semiotic approach to IP laws.4

Semiotics is fundamentally the study of signs.5 Semiotics seeks to understand the operation of a given system or process by observing the function of signification, expression, representation, and communication.6 Generally, semiotics has followed two independent lines: the ‘linguistic’ tradition of Ferdinand de Saussure, and the ‘logical’ tradition of Charles Sanders Peirce.7 The Swiss linguist Ferdinand de Saussure, widely credited as the most influential scholar in the field of semiotics, emphasized the nature of the sign as the coded association of a material signifier, such as the sound of a word, with a signified or preconceived meaning.8 The purely linguistic formulation of a sign is best illustrated in de Saussure’s dyadic model where a linguistic sign comprises two parts: a concept (signified) and a sound-image (signifier). For instance, the word ‘cat’ is a signifier; when it is spoken, it triggers the signified in the listener’s mind, namely the mental image of a cat. According to the Peircean conception of the sign, a third subsign element is adopted to complete Saussure’s model: the referent. In situations where language is used to alert the listener to a specific physical object, a triadic model is necessary. Thus, in the above example, the word or sound ‘cat’ is the signifier, the mental image evoked is the signified, and the actual cat being discussed is the referent.9

Umberto Eco describes semiotics as a social science discipline that studies ‘everything that can be taken as a sign’.10 A sign is simply a thing that stands for something else. Although it has its origins in the study of language, semiotic analysis is a trans-linguistic activity11 that can be applied to the inquiry of ‘[a system] of structural codes … that engages with culture, consumption, and communication in the marketplace’.12 It has been said that there are ‘two general components to the functioning of a semiotic sign: signification and value. Signification represents the process by which a signifier evokes a signified, which in turn can lead to the identification of a referent or object … Value is described as the horizontal relation among subparts and involves differentiating among subparts (that is, for example, signifiers from other signifiers or signifieds from other signifieds)’.13