Copyright upholds economic privileges and prioritizes util over ethics---that isolates queer creators and appropriates queer culture into private corporations.

In the Anglo-American tradition, IP rights are primarily focused on economic privileges. This approach generally holds that IP rights incentivize creativity and the dissemination of creative works by providing authors with exclusive control over the exploitation of their works.176 This control is established through economic rights that include control of reproduction, adaptation, distribution, and public performance of a copyrighted work.177 On the other hand, moral rights—namely, rights reflecting authors’ associations and connections with their works—are deemed a negligible part of copyright law and are virtually non-existent in patents or design laws.178 Moral rights include the right to be recognized as the author (attribution) and the right to prevent any alterations to the work that are prejudicial to the author’s honor or reputation (integrity).179 There is a vast literature advocating for critical appraisals of IP’s focus on economic rights and utilitarian incentives and its disregard of moral rights. Rebecca Tushnet, for example, suggests that the focus on utilitarian incentives “results in a systematic disregard for non-market incentives,” which leads to an inaccurate view of creativity.180 Carys Craig suggests that the focus on economic rationality shifts authorship “from a situated, communicative act” to “an individual act that produces a commodifiable thing.”181 Yet economic rights currently remain the focus of copyright law, and moral rights remain largely negligible.182 As the U.S. Court of Appeals for the Second Circuit stated in Gilliam v. ABC, 183 “American copyright law, as presently written, does not recognize moral rights or provide a cause of action for their violation, since the law seeks to vindicate the economic, rather than the personal, rights of authors.”18 IP’s prioritization of economic utilitarianism over moral interests consolidates a cultural hierarchy according to which only the types of creativity and cultural exchange that lend themselves to economic exploitation are socially beneficial. Furthermore, by prioritizing economic rights, as Elizabeth Rosenblatt notes, “the system reflexively protects itself. It encumbers—both through discursive denigration and legal impediment—the upturning of this expressive hierarchy.”185 While queer creativity may have high economic potential in practice, queer creators tend not to exploit their works and instead engage in other means of recognition and exchange, such as gift exchange, attribution, and sharing.186 Additionally, economic utilitarianism is said to be associated with reason, whereas moral interests are said to be associated with emotions.187 This notion corresponds to the culturally entrenched and essentialist view that the queer mind, queer sexuality, and queer body (like the female mind, sexuality, and body) are sites of unreason that are unintelligible.188 It should be noted that, from a queer perspective, commodification and economic exploitation are not necessarily an undesired outcome. But this is beside the point. Given IP’s focus on economic exploitation, the questions are, What hierarchy is created by IP’s categorizations, and what implications for subjectivity exist beyond the immediate domain of producing or consuming intellectual works?189 Copyright subject matter: The Copyright Act includes a list of works in which “[c]opyright protection subsists.”190 This list includes literary, musical, dramatic, pictorial, audiovisual, and architectural works; pantomimes; and sound recordings.191 Other creative products such as cooking recipes, fashion designs, and needlework generally do not enjoy copyright protection.192 This means that certain types of creators enjoy copyright in their works, whereas other types of creators do not usually enjoy copyright in their works or at least face substantial hurdles in applying copyright to key aspects of their intellectual products.193 This is regardless of the fact that they may have invested much creativity and originality in their creative products.194 There is no compelling justification for providing copyright in songs but not in recipes, in photographs but not in needlework. Scholars have noted this contradiction and suggested various accounts, including historical explanations tracing this divide to powerful lobbying by certain guilds and groups,195 explanations based on a division of the senses (“higher” senses such as sight and hearing versus “lower” senses such as taste),196 and romanticism,197 as well as feminist critical appraisals (traditional “feminine” versus “masculine” crafts) and class-based critical explorations (e.g., working-class versus higher-class crafts and pastimes).198 From a queer-theoretical perspective, it is important to note how these categorizations uphold a certain social order and cultural citizenship. These categories of copyright subject matter channel creators and users into separate classes that have broad social, financial, and cultural implications.199 There are important societal implications for being classified as an author, innovator, user, consumer, free rider, pirate, infringer, and thief.200 In other words, copyright’s categorizations do not simply govern types of cultural goods or market relations; they profoundly shape our social and cultural order. Copyright doctrines such as idea-expression, proprietary-public domain, economic-moral rights, and copyrightable-non-copyrightable subject matter have an additional significant effect in terms of cultural citizenship: they position queer culture as particularly vulnerable to appropriation by the culturally powerful. Whereas mainstream cultural products are “protected” and their owners given broad entitlement and a backing by the courts, many queer cultural products are not the subject matter of copyright; rather, they are labeled as public domain and up for grabs. When these works are grabbed, not only are they vulnerable to appropriation, but they may also be stripped of their queer nature. Vogue provides a solid example wherein cultural expressions of queer people of color have been appropriated, heteronormalized, and subsequently privatized. Emerging in Harlem ballrooms, vogue is a dance practiced both casually and formally in competitions wherein “houses” of queer and trans people of color compete in different themes and techniques (such as femme queen realness, executive realness).201 Voguing is quintessentially queer and Black and Latinx; it is sexual, sensual, and “a site of intersection for the categories of race, class, gender, and sexuality.”202 Yet voguing does not fit within the subject matter of copyright or its criteria for protection but is instead regarded as urban folklore that is in the public domain. And so in 1990 Madonna could take voguing, strip it (for the most part) of its queer, Black and Latinx, and sexualized nature, and privatize it, making the song “Vogue” her copyrighted property.203 This has important cultural implications beyond the proposition that copyright doctrine enables appropriation by the culturally powerful: once subcultural creative expressions such as voguing are removed from their context, privatized, and commercialized, they may be distracted (or redirected) from their natural development.204 Importantly, the argument here is strictly about IP doctrine. Madonna’s specific actions and her inspiration from/appropriation of queer culture remain a contested topic beyond this Article’s scope. On the one hand, Madonna has brought queer creative expressions into the mainstream, advancing queer visibility, employment opportunities, and, as Samantha Thrift notes, “acting as mediator between the heteronormative and the queer.”205 On the other hand, Madonna follows the typical pattern whereby the dominant group borrows from the subordinate group, strips the original expression from its meaning and context, and positions queer creators as “sideshows at which the dominant culture can gawk.”206 IP vocabulary: lastly, examining the vocabulary used in IP legislation, scholarship, and caselaw is helpful because terminology and textual narratives exert a great deal of power in entrenching epistemologies.207 Language is heavily involved in the construction of sexual identities and desire, and queer theory “takes very seriously the significance of words and the power of language.”208 Gendered nouns and pronouns and gendered speech styles are perhaps the more obvious examples of the normative association of language with sex and gender identities, yet discursive language and the use of stereotypically male or female genderlectal descriptions construct certain words and definitions as binary objects-subjects, male-female, hetero-homo.209 A notable example in IP is the use of the word “protection” to describe IP rights or the action of asserting IP rights. The word “protection,” as indicating what IP rights do or what they are about, is widely used in domestic American law and in international IP treaties and agreements. For example, the Berne Convention for the Protection of Literary and Artistic Works indicates from the outset that it is meant to protect works;210 the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) opens by stating that the agreement was established to “tak[e] into account the need to promote effective and adequate protection of intellectual property rights”;211 U.S. patent, copyright, and trademark laws all widely use “protection” to describe the action of IP rights, as do numerous court cases and academic texts.212