(x) CULTURAL SILENCING DA

At the same time, intellectual property law is uniquely poised to govern the most intimate aspects of the representations of human life, including the depiction and commodification of racial, sexual, ethnic, and political identities. Indeed, far from being a value-neutral regime, the history of intellectual property law reveals an astonishing number of incidences where the laws of copyright, trademark, and patent have been used—often with great success—to silence transgressive depictions of sexuality, sexual identity, and gender expression. Earlier in the history of intellectual property law, protection for patented inventions did not extend to so-called “immoral” innovations.3 Today, within the realm of trademark and copyright law, courts have routinely protected the rights of intellectual property owners to enjoin expressive uses of their works under the argument that sexualized depictions “tarnish” the wholesomeness of the original.4 More specifically, recent cases demonstrate an increasing interest in prohibiting suggestions of homosexuality in appropriated works.5 Consider the recent series of cease-and-desist letters sent by DC Comics to a New York art gallery and web site over a series of paintings that showed the superheroes “Batman and Robin” in homoerotic poses.6 Other examples involve a series of legal threats levied against the maker of a film, Ernest and Bertram, which depicted the two Sesame Street characters “Ernie and Bert” in a same-sex relationship,7 as well as against the makers of a series of greeting cards that featured John Wayne and Clark Gable with gay themes.8 Mattel also protested a film’s depiction of its sterling commodity Barbie engaging in a sexual relationship with a female servant.9 A variant of this issue even reached the Supreme Court in a case that held that the United States Olympic Committee (USOC) could enjoin the use of the term the “Gay Olympics” on similar grounds.10

As these events demonstrate, queering mainstream works, while endlessly entertaining, can also be construed as a brazen act of civil disobedience against the frameworks of intellectual property.11 While depictions of sex and sexuality have always been fraught with cultural controversy, these incidents demonstrate how such incidences of “semiotic disobedience” increasingly personify an underlying tension between our legal regimes of intellectual property and free speech, revealing how issues of distributive justice are invisibly intertwined within the interstices of commodified representations.12 While constitutional speech frameworks tend to treat expression as part of an ongoing contribution to layers of democratic dialogue, intellectual property frameworks tend to honor expression as an excludable, privately owned resource. Even though fair use defenses are meant to mediate the boundaries between property and speech, their inherent lack of predictability sometimes contributes to the ongoing instability within the field at large. Often, as these cases show, the resolution of these conflicts results in the exclusion of certain types of recoding over others.

In sum, there is much more to be said about the relationship between intellectual property—as a governing body of law—and its distributive implications for the particular identities that it governs. As these examples suggest, intellectual property law plays significant roles in regulating the marketplace of speech. Depending upon its vantage point, the law can either empower or disable creativity, while also having a powerful impact on who actually receives access to and protection within the marketplace of cultural products. Further, as these examples might suggest, propertizing expression benefits some authors and artists, often within the mainstream, sometimes at the cost of chilling other types of artistic expression and commentary, often from “outsider” groups like women, people of color, and sexual minorities.13 Ignoring this result matters. If we construe a marketplace of copyrighted cultural products as akin to, or at least reflective of, the rich diversity of the marketplace of ideas itself, then the denial of the privileges of authorship to some suggests that we are missing an important and illuminating facet of the relationships between production, representation, and consumption within copyright law. Consequently, we must consider how the inability to access these markets can yield a lasting impression, one that relates to and fosters a greater and more permanent exclusion from the marketplace of speech itself.