Feminist aesthetics allows a reimagining of IP that solves best

From a feminist perspective, of course, the childbirth metaphor could be reimagined to yield alternative conclusions about the relationship of author to text. Rather than a bond based on single-sexed origination, patrilineal lineage, and enduring control, childbirth for the biological mother requires an inevitable letting go: the cutting of the umbilical cord, nurturing, raising and preparing the child to go out into the world, to speak on its own behalf, to interact and form relations with others, to have children of its own. Perhaps, then, the creation-aschildbirth metaphor can be used critically to reimagine the relationship between author and text, and between texts in the ongoing process of cultural creation. Mark Rose makes a similar argument by emphasizing, rather than the relationship of mother and child, the modern understanding of human genetics: [T]he paternity metaphor obscures the fact that literary works are the products of complex collaborations in which many individuals are involved . . . , and that literary works are produced through acts of generation that involve the adaptation and transformation of materials from the literary gene pool rather than creation out of nothingness. . . . The paternity metaphor is patriarchal and obsolete. More significantly, the entire conception of authorship embedded in the paternity trope is obsolete. We need a better biology of authorship. 83 Either conceptual approach is an attempt to disrupt the “male motherhood” metaphor that shaped Romantic conceptions of genuine authorship, and pervaded legal discourse in the justification of authors’ rights. Both illustrate the way in which copyright law, freed from gendered notions of authorship and genius, might evolve to better reflect the processes of intellectual creativity and the dynamic nature of the text. IV. A Feminist Aesthetics for Copyright Law? I have suggested, in the preceding sections, that copyright law is not aesthetically neutral, despite common claims that it demands no aesthetic evaluation of the works to which it extends. I have argued that, in fact, copyright law is dominated by a Romantic aestheticism that venerates originality and denigrates derivative expression. I have also shown, I hope, that copyright’s dominant aesthetic theory, and the implicit assumptions about creators and their works that it generates, are not neutral or gender-free. In fact, the trope of romantic authorship and the related idea of “genius” are radically gendered—and the notion of the author-genius as rightful owner is fundamentally patriarchal. If copyright’s protagonist is revealed to be a surviving figure of patriarchal mythology, and if the structures of copyright law were developed to reward and encourage his efforts, then perhaps the feminist must conclude that copyright law is simply “rotten to the core;” it cannot be redeemed but must be discarded. At best, the feminist must concede that copyright law, in its modern form, was a law written by men, for men. Certainly, in copyright’s formative era, the powers that it granted vested in male authors. By refusing most women the legal status or benefits of proprietors, the law denied most female authors the proprietary relationship with their texts enjoyed by their male counterparts.84 The practical distance thus produced between women’s creative practices and the market may also have produced, in a sense, a psychological distance, a space of resistance, between the cultural creativity and its commoditization.85 Regarded in this way, it would not be surprising to find that women’s relationship to their texts acquired a different hue—one that is not accurately reflected in the proprietary structures of control maintained by the copyright system. Anne Bartow captures this idea powerfully when she states: “Copyright laws were written by men to embody a male vision of the ways in which creativity and commerce should intersect.”86 And so, it remains to be asked, how might a feminist aesthetic be brought to bear in the copyright realm to challenge and change the way in which the law now regulates creative expression? To be clear, there is no unified definition or substance to the category of feminist aesthetics that could produce a single answer to such a question. Rather, it embraces a wide array of perspectives that seek, in various ways, to question seemingly gender neutral philosophical theories and assumptions about art and aesthetic categories, ideas about artists and aesthetic value, and the influences of power in the social formation of the situated subject.87 As this would suggest, the avenues of possible critique in the field of copyright law are manifold, and their potential implications are as diverse as the perspectives that inform them. So, for example, copyright’s subject matter categories could be critically examined on the basis of the works that they privilege as part of copyright’s “core,” and those that they marginalize or exclude. Consider, again, how copyright has tackled the categorization of “artistic works” when troubled by the utilitarian products lurking at the margins. As Yen demonstrated, it has done so by employing (while denying) the use of traditional aesthetic theories. An approach grounded in traditional “formal” aesthetics might ask whether the work generates an aesthetic response in people; feminist theorists might ask, “what people?”, and challenge the notion of art as autonomous from moral or political concerns. After all, aesthetic responses, tied up as they are with judgments of beauty, have tended to assign women the role of bearers of meaning under the male gaze, rather than makers of meaning. A feminist “reception theory” would instead seek to understand the art’s relationship to its cultures—the political, social, religious, economic, and aesthetic responses that it generates—rather than to define it within categories.88 A traditional “intentionalist” approach would inquire into the purposes of the work’s creator; a feminist theorist might ask why the function of covering a bed, for example, is less worthy than the function of achieving professional accolades or making money.89 Whose purpose is privileged, and when can art transcend purpose? An “institutionlist” aesthetic theory might be brought to bear to examine whether a work is accorded the status of art in the artworld; a feminist aesthetics would reveal that “work by women that seems identical in value to work by men may not be [considered] art (or good art) when the artworld’s filters contain social biases about women along with precepts about art.”90 In this way, it becomes evident, I think, that using feminist aesthetics to problematize the underlying assumptions at work in defining copyright’s categories could challenge some of copyright’s exclusionary ideals and practices, and precipitate a re-evaluation of many forms of expression that are relegated to copyright’s margins or excluded from its protective sphere as art’s Other. Similarly, the use of feminist aesthetic theories to unsettle ideas of independent creation could offer new ways of thinking about and assessing standards of “originality.” Whereas courts traditionally look for the absence of copying as the sine qua non of legal protection, a feminist approach that “returns art to its social contexts,”91 might reveal the ways in which even identical reproductions can resituate prior works, lending them “new” meanings across space and time. Deconstructing the Romantic division between origination and imitation could thus suggest alternative standards for measuring expressive worth and assessing the need for encouragement and protection. For example, feminist aesthetics, which also emphasizes the connections within and between communities of artists, might support a more relational approach to the originality determination—one that views the work, not in isolation, but in dialogic relation to the other works on which it is based or to which it responds.92 And, of course, by dismantling the myth of solitary authorship, feminist aesthetics would pave the way to a new appreciation and valorization of art produced cooperatively, collaboratively, or collectively (whether in concert or separated by space and time).93 Broadly speaking, in the copyright domain, as elsewhere, “with the help of feminist aesthetics we are able to appreciate old things in new ways and to assimilate new things that would be excluded by traditional aesthetic theory.”94 The intent here, it should be stressed, is not to extend copyright to cover more forms of expression (and so to impose more expressive limits on others). Just as the critical enterprise of feminist aesthetics does not stand or fall by proving some kind of parity with male literary or artistic “genius,” a feminist critique of copyright does not succeed or fail with its ability to extend the privileges of copyright protection to more women authors or predominantly female creative practices. Rather, by bringing feminist aesthetics into the heated debates around copyright law, we can critically re-evaluate the theoretical underpinnings of a copyright system based on gendered assumptions about creativity, economic reward, exclusion, and control.