IP, R.I.P.

Death is an inevitably disruptive event. When a famous artist or public figure dies, the fallout can be particularly complex and contentious. An artist’s surviving family and close friends frequently seek privacy and solitude as they process a deeply personal loss, while millions of fans, by contrast, seek to widely share, rework, and celebrate the decedent’s archive of work. When these very different mourning processes intersect, intellectual property laws play a pivotal role in deciding how an artist is mourned, commemorated, and remembered. This Article reexamines the interests of an artist’s families, friends, and other heirs (IP estates) within the IP system. Previous scholarship has been nearly uniformly critical of IP estates: IP estates “jealously guard” their ancestor’s legacy, “sit back and collect rent,” and put a “stranglehold” on the public domain. This Article, by contrast, reveals a more diverse and sympathetic set of motivations. Although IP estates do often try to restrict fair use and free speech, they also seek to vindicate interests otherwise celebrated in our legal culture: remedying exploitation, protecting family privacy, and maintaining the dignity of the deceased. For the families and friends of individuals in creative fields, IP can serve as a valuable tool in managing the messy tasks of mourning and moving forward. This Article excavates the role of IP in mediating the diverse interests of families and fans as they process the death of an artist. Even if the conduct of IP estates can be highly questionable from a social welfare perspective, recognizing the interests that animate their disputes nonetheless can lead to (1) greater common ground among the various stakeholders negotiating an artist’s cultural legacy and (2) improved use of estate planning to reduce the likelihood of conflict

Copyright Essentialism and the Performativity of Remedies

This Article critically examines the interrelationship between substantive copyright protections and the remedies available for infringement. Drawing from constitutional remedies scholarship and poststructural theories of performativity, it argues that a court’s awareness of the likely remedy award in a particular dispute —combined with its normative view of how future actors should address similar disputes—“reaches back” and shapes the determination of the parties’ respective rights. Copyright scholars have long sought to limit the availability of injunctive relief, and several recent court decisions have adopted this reform. For example, in Salinger v. Colting the Second Circuit vacated a preliminary injunction against a critical reinterpretation of The Catcher in the Rye, setting forth a new preliminary injunction standard that expressly requires a court to consider the First Amendment interests of the parties and the public. In the same opinion, however, the court in a single paragraph affirmed “in the interest of judicial economy” the district court’s widely derided rejection of Fredrik Colting’s fair use defense. This Article suggests that this was no coincidence. It demonstrates that limits on available remedies have the potential to lead to the expansion of substantive rights, further entrenching dominant interests within the copyright system under the guise of protecting free speech and expression

Punishing Sexual Fantasy

The Internet has created unprecedented opportunities for adults and teenagers to explore their sexual identities, but it has also created new ways for the law to monitor and punish a diverse range of taboo sexual communication. A young mother loses custody of her two children due to sexually explicit Facebook conversations. A teenager is prosecuted for child pornography crimes after sending a naked selfie to her teenage boyfriend. An NYPD officer is convicted for conspiracy to kidnap several women based on conversations he had on a “dark fetish” fantasy website. In each of these cases, online sexual exploration and fantasy easily convert into damning evidence admissible in court. This Article reveals a widespread and overlooked pattern of harshly punishing individuals for exploring their sexual fantasies on the Internet. It shows, for the first time, that judges and juries have repeatedly conflated sexual fantasy with harmful criminal conduct, have largely been dismissive of fantasy-based defenses, and have relaxed evidentiary standards to prejudice individuals whose desires provoke disapproval or disgust. Even as celebrated decisions by the United States Supreme Court provide broader constitutional protection to sexual minorities, this Article shows that actual venues for exploring sexuality remain on the social and legal margins. Drawing from recent criminal law, family law, and First Amendment cases, this Article shows that courts have struggled to adapt free speech, privacy, and due process principles to the uncomfortable realities of the digital environment

Preserving the Seeds of Gender Fluidity: Tribal Courts and the Berdache Tradition

This Article outlines the particular cultural characteristics giving rise to traditional berdachism, the means by which American policies fostered their decline, and the Navajo tribal courts\u27 re-infusion of these characteristics into contemporary jurisprudence. By tracking the interplay between the traditional values of child autonomy, gender equality, and tribal collectivism, the rise, fall and potential reemergence of the berdache tradition can be analyzed as resulting from shifts in its determinative cultural elements

Endorsing After Death

An endorsement is an act of giving one’s public support to a person, product, service, or cause; accordingly, it might seem impossible for someone to make an endorsement after they have died. Nevertheless, posthumous endorsements have become commonplace in social media marketing and have been increasingly embraced by trademark and unfair competition laws. Entities representing Marilyn Monroe, for example, have successfully brought trademark claims for the unauthorized use of Monroe’s name, have successfully brought false endorsement claims under section 43(a) of the Lanham Act, and regularly have promoted products through the Instagram-verified “@marilynmonroe” page. Marilyn Monroe survives today as a highly paid celebrity endorser even though she died almost sixty years ago and her “estate” is controlled by individuals without any personal connection to her. This Article closely examines the growing body of posthumous endorsement law and sets forth a new framework that better respects both the agency of the deceased as well as the continuing bonds between the deceased, their fans, and their families. Intellectual property (IP) scholars have critiqued other forms of postmortem IP, such as copyright and publicity rights, but this Article shows that posthumous endorsement rights pose unique and largely unaddressed concerns. First, these rights frequently pose a continuity problem: courts have allowed endorsement rights to shift from the decedent, to their heirs, to unrelated third parties without acknowledging just how differently situated each of these entities is with respect to the communicated endorsement. Second, these rights pose discursive problems: they allow rightsholders to speak in the “official” voice of the decedent, leveraging the individual’s continuing cultural influence into commercial and political endeavors that emerge long after their death. Third, these rights pose dignitary concerns: individuals are often symbolically brought back from the dead without their consent and forced to speak on behalf of entities that have purchased their goodwill on the open market. Nonetheless, there are some important reasons for IP laws to recognize at least some form of posthumous endorsement rights. Marketing scholarship has shown that posthumous endorsements are often material to consumers, and there is a shared interest among the decedent, their fans, and their families in shutting down false suggestions that a good or service received the decedent’s blessing. Accordingly, this Article proposes that courts only recognize posthumous endorsement rights where there is both “privity and power.” An entity can only meaningfully endorse goods or services on behalf of a decedent—or affirmatively disclaim their approval—when they (1) own the image, word, or symbol that is signaling endorsement and (2) are empowered to make legal decisions on the decedent’s behalf. Only when an individual is empowered to step into the shoes of a decedent, and required to act in the decedent’s best interests, can the individual fairly and accurately speak for the dead

Copyright\u27s Market Gibberish

There is a growing contradiction at the core of copyright law. Although courts and scholars frequently assert that copyright is only about authors’ economic interests, copyright law routinely protects interests such as privacy, sexual autonomy, reputation, and psychological well-being. It just uses the language of money and markets to do so. This Article shows that copyright law routinely uses economic rhetoric to protect a broad range of noneconomic interests—a practice this Article names “market gibberish.” Market gibberish muddies copyright jurisprudence and has sweeping practical, conceptual, and distributive impacts. In a wide range of copyright cases, plaintiffs use economic and market-based theories to achieve goals that have little do with economic rights. If plaintiffs can plausibly tell a story of market harm, courts will often respond by manipulating economic rhetoric to provide the desired outcomes. For example, courts have protected celebrities’ rights to permanently suppress wedding photos and sex tapes, under the theory that they have the “right to change their mind” and someday reap profits from these materials. When courts engage in market gibberish, they obscure the diverse range of economic, emotional, and cultural interests at stake within copyright law. This Article argues that, instead of dogmatically hewing to economic incentives and market rhetoric, courts should engage in a more transparent examination of the interests actually at stake in copyright disputes. This Article makes three primary contributions. First, it provides the first comprehensive account of market gibberish and shows, through detailed analysis of case law, that litigants have long used market gibberish to advance their noneconomic goals. Second, it shows how the prevalence of market gibberish erodes copyright theory and practice. Rather than rigorously police market interests—as many scholars have proposed—courts should more explicitly engage with the diverse motivations for asserting copyright infringement. An interest-transparent approach would shed light on the complex normative work copyright is already doing and better distinguish between legitimate and abusive copyright assertions. Finally, this Article shows how market gibberish contributes to inequality under copyright law. A plaintiff’s ability to tell a story about potential markets is often limited to the most powerful rightsholders—famous artists, celebrities, and corporate creators—and not to the wide range of vulnerable and lesser-known individuals who are turning to copyright to stop the viral spread of their words, images, or voice

Preserving the Seeds of Gender Fluidity: Tribal Courts and the Berdache Tradition

This Article outlines the particular cultural characteristics giving rise to traditional berdachism, the means by which American policies fostered their decline, and the Navajo tribal courts\u27 re-infusion of these characteristics into contemporary jurisprudence. By tracking the interplay between the traditional values of child autonomy, gender equality, and tribal collectivism, the rise, fall and potential reemergence of the berdache tradition can be analyzed as resulting from shifts in its determinative cultural elements

Copyright’s Capacity Gap

Most areas of law require that individuals meet a certain threshold of capacity before their decisions — e.g., to marry, to enter into a contract, or to execute an estate plan — are given legal effect. Copyright law, by contrast, gives legal effect to creative decisions by granting the decisionmaker many decades of exclusive rights so long as they are a human being and have demonstrated a “creative spark.” This Article examines the overlooked consequences of this gap in capacity standards between copyright and other areas of law. It shows that this gap has produced numerous opportunities for vulnerable creators to be exploited by more powerful individuals — often individuals who have been entrusted with their care. These creators can produce valuable property interests through the copyright system, but they may lack the legal ability to make decisions about whether, when, where, and how to commercially exploit those interests. Copyright law expresses the key message that creative labor by legally incapacitated individuals is important and valuable, but it largely leaves these individuals at the mercy of a legal system that is often highly dismissive of their dignity and autonomy. This Article surveys contemporary and historical examples of copyright’s capacity gap, and it examines potential ways of closing this gap for the benefit of vulnerable creators

Pleasure Patents

The United States Patent and Trademark Office has granted thousands of patents for inventions whose purpose is to facilitate the sexual pleasure of their users. These pleasure patents raise a range of novel questions about both patent theory and the relationship between law and sexuality more broadly. Given that immoral inventions were long excluded from the patent system, and that sexual devices were widely criminalized for much of the past 150 years, how have patentees successfully framed the contributions of their sexual inventions? If a patentable invention must be both new and useful, how have patentees described the utility of sexual pleasure? This Article identifies several hundred patents that the USPTO has formally classified as improving sexual stimulation and intercourse, and it closely examines how patentees have described the utility of sexual pleasure over time. In describing the utility of technologies such as phalluses, vibrators, and virtual reality systems, patentees employ a diverse and rich set of themes about the purposes and social values of sexual pleasure. By facilitating sexual pleasure, these patented technologies can, according to their inventors: improve marital harmony, overcome female frigidity, calm fears of HIV transmission, reduce sexual assault, suppress demand for sex work, minimize the loneliness of single people, facilitate LGBTQIA relationships, and promote the emotional well-being of people with disabilities. As social and sexual norms have changed over time, so too have the various explanations for the social value of pleasure patents. This Article shows that the patent system is an underappreciated, and perhaps unexpected, archive of historical and contemporary sexual norms

Pleasure Patents

The United States Patent and Trademark Office has granted thousands of patents for inventions whose purpose is to facilitate the sexual pleasure of their users. These “pleasure patents” raise a range of novel questions about both patent theory and the relationship between law and sexuality more broadly. Given that “immoral” inventions were long excluded from the patent system, and that sexual devices were widely criminalized for much of the past 150 years, how have patentees successfully framed the contributions of their sexual inventions? If a patentable invention must be both new and useful, how have patentees described the utility of sexual pleasure? This Article identifies several hundred patents that the USPTO has formally classified as improving sexual stimulation and intercourse, and it closely examines how patentees have described the utility of sexual pleasure over time. In describing the utility of technologies such as phalluses, vibrators, and virtual reality systems, patentees employ a diverse and rich set of themes about the purposes and social values of sexual pleasure. By facilitating sexual pleasure, these patented technologies can, according to their inventors: improve marital harmony, overcome female frigidity, calm fears of HIV transmission, reduce sexual assault, suppress demand for sex work, minimize the loneliness of single people, facilitate LGBTQIA relationships, and promote the emotional well-being of people with disabilities. As social and sexual norms have changed over time, so too have the various explanations for the social value of pleasure patents. This Article shows that the patent system is an underappreciated, and perhaps unexpected, archive of historical and contemporary sexual norms