Andrew Gilden, ‘Sex, Death, and Intellectual Property’

The role of intellectual property is changing. IP traditionally is characterized as providing economic incentives to invest in creative production or as a reward for intellectual labor, and accordingly IP laws typically are associated with the needs of corporate creators and celebrity artists. In an era of smartphones and social media, however, IP has become a tool for a diverse range of vulnerable individuals to assert autonomy within unequal and risky digital environments.

This paper examines cases in which IP is not being used to fortify economic incentives or reward labor but instead as a way to manage boundaries around sensitive and intimate social activities. These include lawsuits to combat the nonconsensual dissemination of sexual imagery and lawsuits by families of deceased artists and public figures to shape the cultural memory of the deceased. IP theory has often resisted addressing questions of sexual autonomy, privacy, or family mourning, yet IP is playing an increasingly important role in mediating each. Many scholars have stressed that we no longer need IP laws to spur widespread creative activity in the social media era; nevertheless, the social, emotional, and economic stakes surrounding control over image, sounds, and text arguably have never been greater.

This paper makes two main contributions. First, it shows that IP often provides an effective tool for managing personal and social boundaries and as a result reinforces autonomy, community, and kinship among the diverse group of individuals who become rights holders. Individuals are using the old tools of IP to tackle a new and different set of socioeconomic challenges. Second, as a normative matter, it argues that IP provides some important practical and conceptual advantages over other legal responses to sexual privacy and family mourning. IP delegates context-sensitive boundary-management decisions to individuals, families, and communities – as opposed to more top-down criminal or regulatory solutions – and can be transferred within communities and across generations – as opposed to more individualized tort and contract solutions. Although undeniably a break from traditional theory, IP can be a useful means of legally responding to emergent cultural vulnerabilities.

Gilden, Andrew, Sex, Death, and Intellectual Property (May 14, 2018). Harvard Journal of Law and Technology, forthcoming.

First posted 2018-05-30 16:05:03

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