Thomas Dreams of Separability
9 Harv. J. Sports & Ent. L. 83 (2018)
18 Pages Posted: 7 Nov 2017 Last revised: 16 Feb 2018
Date Written: November 1, 2017
This short story is — or, at least, occupies the place of — the fourth installment in a five-article series for the Harvard Journal of Sports & Entertainment Law. The series, originally entitled 'The History and Principles of American Copyright Protection for Fashion Design,' began as a sort of mini-treatise on the idiosyncrasies of the federal courts' fashion-specific copyright decisions. Readers of this piece will see that, whatever it is, it is not that.
Allow me to explain. Just before the third installment of the JSEL series went to press, the Supreme Court granted certiorari in a case, Star Athletica, LLC v. Varsity Brands, Inc., 15-866 (U.S. May 2, 2016), that had the potential to clarify, harmonize, and/or transform the law governing the copyrightability of fashion design (and other works of "applied art.") This series was immediately put on hold pending the Court's ruling in Star Athletica, which the author and editors hoped would prove to be a rich resource for further elucidation of the doctrines and themes to which the series was dedicated.
The decision handed down in March 2017 was emphatically not such a resource. The author of this series found himself flummoxed. Indeed, the "content" of Justice Thomas's majority opinion was such that the fourth (let alone fifth) article of the planned series simply "wouldn't write." Eventually, the author — perhaps misguidedly and hubristically inspired by Michel Foucault's unapologetic change of direction between the first and second books in the five-volume series, The History of Sexuality (which remained uncompleted at the time of his tragically premature death) — found it necessary to alter course. (The editors of JSEL were kind enough to indulge him.)
The fourth installment, the author decided, would look radically different from the first three. No mere change of title, theme, or method would enable him to engage with the Star Athletica decision, and all that it represented; a change of *genre* was necessary. The result was a fictional work, the first half of which is included here as (or instead of) the fourth installment of the JSEL series. The author will conclude the narrative, and the series, in a piece slated for the Spring 2018 issue of JSEL, to be published under the title "The Longest Transference."
Keywords: separability, copyright, allegory, narrative, mode, psychoanalysis, dream, Lacan, sinthome, intellectual history, theory, literature, Borges, prosopopoeia
Suggested Citation: Suggested Citation