Slash/Ing Gender and Intellectual Property: A View from Fan Fiction

Forthcoming volume on Diversity in Intellectual Property (edited by Irene Calboli and Srividhya Ragavan)

Fordham Law Legal Studies Research Paper No. 2538763

36 Pages Posted: 18 Dec 2014

See all articles by Sonia Katyal

Sonia Katyal

University of California, Berkeley - School of Law

Date Written: December 15, 2014

Abstract

Today, it is no secret that the regime of copyright law, once an often-overlooked footnote to our legal system of property, now occupies a central position in modern debates surrounding the relationship between freedom of expression, language, and ownership. Curiously, while contemporary scholarship on copyright now embraces a wide range of political and economic approaches, it has often failed to consider how intellectual property (hereinafter, IP), as it is owned, constituted, created, and enforced, both benefits and disadvantages segments of the population in divergent ways. This absence is both vexing and fascinating. While issues of distributive justice have permeated almost every other area of legal scholarship, the literature on intellectual property has traditionally reflected a striking lack of attention to these considerations. Indeed, far from being a value-neutral regime, the history of IP law reveals an astonishing number of incidences where the law has been used — often with great success — to silence transgressive depictions of sexuality, sexual identity, and gender expression.

This Chapter, from a forthcoming volume on Diversity in Intellectual Property (edited by Irene Calboli and Srividhya Ragavan) excavates the relationship between the formal and the informal marketplaces of copyrighted commodities and expression. The interactions between the two markets, I argue, highlights a deeper set of constraints and possibilities with respect to equalizing the marketplace of speech, particularly the production, dissemination, and circulation of content by women. Here, instead of serving as fixed, excludable elements of owned property as in real space, copyrighted cultural products in cyberspace become performative, cultural texts — infrastructural resources — that are ripe for commentary, recoding, transgression, and appropriation. While most conventional scholarship casts the audience as a largely passive body of recipients, performance theory has helped us to radically rethink these assumptions and has offered scholars a host of insights regarding the multiple and intersecting ways in which audiences respond to performances, often creating rich and varied interpretations of a preexisting work, with fan fiction being a single example. Along these lines, I argue that copyright must view its commodities not as fixed, stable texts, but rather as a set of starting points, of ongoing performances that can be recoded and reanalyzed by an active audience. In other words, copyright law needs to equalize the authorial monopoly of the creator in favor of a more dialogic and dynamic relationship between producers and consumers in the process.

Keywords: gender, sexuality, copyright, fan fiction

Suggested Citation

Katyal, Sonia, Slash/Ing Gender and Intellectual Property: A View from Fan Fiction (December 15, 2014). Forthcoming volume on Diversity in Intellectual Property (edited by Irene Calboli and Srividhya Ragavan) ; Fordham Law Legal Studies Research Paper No. 2538763. Available at SSRN: https://ssrn.com/abstract=2538763

Sonia Katyal (Contact Author)

University of California, Berkeley - School of Law ( email )

215 Boalt Hall
Berkeley, CA 94720-7200
United States

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