Adler and Fromer, ‘Taking Intellectual Property into Their Own Hands’

When we think about people seeking relief for infringement of their intellectual property rights pursuant to copyright and trademark laws, we typically assume they will operate within an overtly legal scheme of cease-and-desist letters, notice-and-takedown requests, litigation, or settlement. Quite by contrast are those who assert extralegal norms within a tight-knit community to remediate copying of creative works like tattoos, recipes, jokes, roller derby pseudonyms, and magic, which lie outside the subject matter – or at least the heartland – of these intellectual property laws. In recent years, however, there has been a growing third category of relief-seekers: those taking intellectual property into their own hands as a way to seek relief outside the legal system for copying of works well within the heartland of copyright or trademark laws, such as visual art, music, and fashion. Moreover, they can do so successfully across different artistic communities or in the absence altogether of any discrete community – that is, without the backdrop of a single close-knit community, which legal scholars tend to see as a prerequisite to enforcing extralegal norms. They exercise intellectual property self-help in a constellation of related ways. Most frequently, they use shaming, principally through social media or a similar platform to call out perceived misappropriations. Other times, they reappropriate perceived misappropriations, therein generating yet new creative works. This Essay identifies, illustrates, and analyzes this phenomenon using a diverse array of recent examples, including the Suicide Girls’ retaking of Richard Prince’s copies of their Instagram photos, Gucci’s hiring of street artist GucciGhost for a recent fashion collaboration, a number of intellectual property diss songs at the center of hip hop, James Turrell’s calling out of Drake for using artwork reminiscent of Turrell’s in a popular music video, and Instagram phenomenon Diet Prada, which devotes itself to shaming copycats in fashion. Aggrieved creators can use self-help of the sorts we describe to accomplish much of what they could hope to derive from successful infringement litigation: collect monetary damages, insist on attribution to them of their work, and correct potential misattributions to them of a misappropriation. We evaluate how to assess the benefits and demerits of intellectual property self-help, as compared with more traditional intellectual property enforcement. We hold out more hope for the promise of self-help through retaking of copies than through social media shaming. Reappropriations, at their core, provide society with new artistic creations. Reappropriators turn the intellectual property paradigm on its head, by seeing infringement as a moment for creativity, rather than as a block to creativity. Social media shaming gives far less to the public, at least artistically.

Adler, Amy and Fromer, Jeanne C, Taking Intellectual Property into Their Own Hands (May 22, 2018). California Law Review, Volume 107, 2019 forthcoming.

First posted 2018-06-07 06:13:29

Leave a Reply