My Fair Ladies: Sex, Gender, and Fair Use in Copyright

Abstract:     
Both parodies and legal opinions reflect the culture from which they come, and our culture has many anxieties about sexuality and about women's bodies. This article explores the ways in which these anxieties play out in fair use cases. By favoring sexualization over other types of critique, fair use doctrine systematically treats sex as especially oppositional and liberating, when in fact it has no monopoly on critique and no necessarily disruptive effect on a copyright owner's message. Still, adding overt sexuality to a work could challenge our ideas about the original, as well as proper sex and gender roles. Thus, this article does not argue against sexuality or transformativeness, but rather against facile acceptance of an equation between the two, and particularly against the idea that other kinds of transformation deserve less fair use protection and are more likely to fall within a copyright owner's legitimate market. Gender and sexuality play varied roles in signaling criticism, defining markets, and establishing a work's place in cultural hierarchies. Fair use doctrine should pay attention to these things, not sexuality itself.

Keywords: copyright, fair use, feminism, sexuality, transformative use

Accepted Paper Series