IPR creates a hierarchal order that marginalizes queer expression

This Article adds a new critical lens—that of queer analysis—to appraise IP, arguing that IP law and doctrine create a power matrix and cultural order that systematically subjugate certain cultural expressions and creators. IP produces a hierarchy of cultural categorizations that, in turn, channels groups and individuals into a hierarchal social order. More specifically, a queer analysis of IP law asserts that IP constructs creative production as a heteronormative endeavor, abetting the institutionalization of heteronormativity as the dominant cultural format in popular culture and the marginalization of alternative sexual, gendered, and intersectional cultural expressions, resulting in a cultural and a social hierarchy. IP law does so through doctrines that disadvantage queer cultural expressions, such as the categorization of certain queer creative expressions as folklore that is not copyrightable, and through sex-negative and queer-negative attitudes in courts—for instance, in courts’ reluctance to apply fair use provisions for cases involving the use of copyrighted material in sexualized or genderqueer contexts.8 At the same time, a queer analysis of IP also offers a new understanding of the relationship between IP law, mainstream culture, and counter-mainstream culture. The relationship between IP and queer creativity (and other countercultural expressions), this Article argues, is deeper and more complex than meets the eye: queer cultural production is often grounded in the rejection of IP’s concepts, rules, and aesthetics. So, while IP law structures hegemonic notions of cultural production, it simultaneously defines a field of marginal cultural production. Similarly, queer creativity often engages directly with mainstream works (which are often under copyright), transforming, rewriting, and “queering” mainstream culture. A quick clarification of what a queer analysis encompasses can be helpful at this point. While queer theory resists definitions, viewing “queer” as a fluid, plural, and continually negotiated term,9 it is, as Andrew Gilden observes, profoundly “concerned about the relationship between the tangible and the intangible,” much like IP theory.10 Queer theory understands that the organization of intangible things, such as what we see, feel, and touch, shapes our social landscape and the distribution of wealth, happiness, and political power.11 Queer theory maintains that sex and gender are produced through certain patterns that are associated with certain social labels; thus, they are essentially performative.12 A queer analysis would therefore endeavor “to reveal and disrupt narratives, conventions, institutions, and identities” that are structured around sex and sexuality and identify the ways in which certain kinds of stylizations of gender and sexuality are foregrounded and rewarded.13 A queer exploration of IP law then would aim to investigate how IP foregrounds sexuality, normativity, and gender stylizations in cultural production and ask questions such as how the sexualization and gendering of certain methodologies, occupations, creative works, or the cultural landscape result in bestowing or withholding certain legal or social privileges.14 The term “queer” also encompasses a sociological component that is related to, but not to be confused with, queer theory. Queer can also be a (personal or collective) identity, and queer sites can be seen as places where “traditional social correlations of bodies, desires, kinship, and temporality come apart and new ways of imagining their intersections come to the surface.”15 Often, in these sites, queer creativity and culture flourish.