IPR reform fails – legal mechanisms are too easily coopted by elites, and there’s historic precedence.

Dominant social norms with respect to gender, race, family, and sexuality are deeply embedded in cultural artifacts like Barbie, Mickey, and Gone with the Wind, and strong IP protections for those works keep the cultural associations with those works firmly established as the “official” configuration of sex, gender, and commerce. Queer theory recognizes that these configurations are constantly contested by the curious children, engaged fans, and artists who experiment with them. IP theorists recognize that the law can facilitate these contestations and accordingly help dislodge the social norms built into the propertied artifact. At the same time, a mere loosening of historic legal restrictions should not be equated with a revolutionary dislodging of social hierarchies. Queer theorists have repeatedly pushed back against the notion that expanding legal protections for LGBT people equates to sexual liberation. Just because those individuals typically associated with oppression are being less oppressed, for example, as a result of expanded access to marriage or the military, does not mean that the social values underlying those institutions have been fundamentally dislodged. Milestone LGBT rights decisions like Lawrence v. Texas and Obergefell v. Hodges have been criticized for their domesticating impulse,71 and LGBT-friendly laws have been chastised for “pink-washing” human rights abuses against other minorities.72 A similar caution might be useful in the IP context. As much as reworking popular works can dislodge the norms embedded in those works, the same legal mechanisms that allow such reworking—most notably fair use—can be co-opted by wealthy, famous appropriators who build off the work of poorer, queerer, or otherwise marginalized creators.73 When Jeff Koons, Richard Prince, Beyoncé, or Green Day relies on fair use to excuse nonpayment or non-recognition of appropriated work, the implications of these fixations may be quite different than when these artists’ work is recontextualized by lesser-known creators. Every “new” work may to some degree be a transformation of something that came before, but not all transformation is necessarily transformative in a politically meaningful way.74 The challenge for IP theory is to create space for the recoding of culture while at the same time remaining attuned to the slipperiness of power and the ability of social norms to persevere and adapt.