You can download the whole draft at SSRN! Here is the 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, however, while contemporary scholarship on copyright now embraces a wide range of political and economic approaches, it has often failed to consider how intellectual property law – 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, scholarship on intellectual property, while perfectly poised to grapple with these aspects, has traditionally reflected a striking lack of attention to these considerations.
Indeed, far from being a value-neutral regime, the history of intellectual property law reveals an astonishing number of incidences where the laws of copyright, trademark and patent have been used – often with great success – to silence transgressive depictions of sexuality, sexual identity, and gender expression. While depictions of sex and sexuality have always been fraught with cultural controversy, these incidents also demonstrate how, increasingly, such incidences of semiotic disobedience personify an underlying tension between our legal regimes of intellectual property and speech, and reveal how issues of distributive justice are invisibly intertwined within the interstices of commodified representations.
In this article, I explore one particular type of fan fiction as an example of this trend, known as slash fan fiction, which demonstrates how copyright both protects and prohibits divergent kinds of expression. Women have long been the dominant force behind fan fiction; like many types of creative work performed by women, their contributions are usually circulated among informal, decentralized, and largely unrecognized communities outside of the mainstream. Slash fan fiction, like other types of fan fiction, is just one example of the myriad number of ways in which female audience participation can drastically alter the performance and interpretation of a given text. Yet slash fan fiction takes the trope of the engaged audience to a new level. Slash fan fiction involves fictional, homoerotic pairings between male characters in mainstream television and science fiction programs. As I show, slash fan fiction empowers the virtual community to actively rework traditional narratives between men, demonstrating how queering mainstream characters can actually deconstruct, and then transcend, traditional gender norms and stereotypes. Unlike the commodified world of the content industries, which are largely dominated by men, slash fan fiction represents a striking example of how female consumers can radically rework and recode existing texts to create new works that add to the marketplace of ideas to create a kind of alternative cultural and political economy that surrounds a copyrighted work, and, as I argue, actually slash the strictures of gender stereotyping in the process.
To show how this world is possible, I draw on performance theory to demonstrate the need for copyright’s active reengagement with its audience. By creating spaces for such reworkings of cultural texts, we allow texts to transcend their fixed, stable form – and instead to become properties that are performative in nature; that is, they become ripe for audience participation and contribution. I suggest that copyright law must embrace a clear division between the product as property and the product as performance. While most conventional scholarship tends to think of the audience as a largely passive body of recipients, performance theory has helped us to radically rethink these assumptions, and instead 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, 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, a set of ongoing performances that can be recoded and reanalyzed by an active audience. In other words, I argue that 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.