SEX, DEATH, AND INTELLECTUAL PROPERTY.

• Author: Gilden, Andrew

TABLE OF CONTENTS I. INTRODUCTION 67 II. IP'S SHIFTING TERRAIN 72 A. The Garcia Roadblock 73 B. Missing Voices 76 III. SEX, DEATH, AND NON-TRADITIONAL IP ASSERTIONS 79 A. Sexual Autonomy 81 1. Revenge Porn 82 2. Celebrity Sex Tapes 87 3. Other Intersections of IP and Sexual Autonomy 91 B. Death, Mourning, and Legacy 93 IV. TOWARDS A THEORY OF IP AS BOUNDARY MANAGEMENT 99 A. Comparative Advantages of IP 100 B. Normative Functions of IP 105 C. Potential Reforms 112 V. CONCLUSION 114 I. INTRODUCTION

Dozens of strangers show up at a man's apartment looking for sex. (1) A local newscaster tries to hold onto her career after participating in a wet t-shirt contest. (2) A woman's naked video tape becomes ammunition for a hip-hop feud. (3) A dead rapper introduces Beyonce at the Super Bowl. (4) A newspaper tries to publish a family member's autopsy photos. (5) A father's lifelong work becomes a Vegas slot machine. (6)

Intellectual property ("IP") has nothing and everything to do with these circumstances. IP laws are traditionally intended to incentivize the creation and dissemination of intangible goods, not to enhance physical safety, protect employment prospects, maintain privacy, assist with mourning, or dignify the deceased. (7) Yet the powers created by IP laws--namely the ability to substantially control the use of names, images, voices, and texts--implicate far more than intellectual production. In each of the above cases, control over the subject matter of IP was central to securing the plaintiff's economic, emotional, and cultural interests. More specifically, one or more copyright, trademark, or publicity rights claim were expressly asserted in each. In these and in many other cases, IP is doing work that it was not intended to do. And this is okay.

This Article examines topics that IP tends to ignore. Courts and scholars insist that IP should remain moored to its traditional concern of sufficiently incentivizing expensive creative endeavors, but IP laws increasingly advance a broad range of interests that have little to do with economic incentives. (8) Especially in the context of the Internet and social media, control over the subject matter of IP enables greater control over self-representation and an enhanced ability to navigate individual, familial, and cultural boundaries around some of the most sensitive and intimate aspects of people's lives. In particular, this Article focuses on the role of IP in addressing two of our culture's most uncomfortable, yet deeply important topics: sex and death.

IP theory has relatively little to say about sexual autonomy and privacy, (9) or about family mourning, (10) yet in a wide range of cases, these concerns are central to the assertion of IP rights. In the first set of cases, copyright, trademark, and rights of publicity are combatting "revenge porn" and other nonconsensual dissemination of sexual imagery. In the second set of cases, families of deceased artists and public figures are asserting IP rights in order to help them mourn, maintain continuity with a loved one, and shape the cultural memory of the deceased. (11) These cases are highly diverse, but they share important unifying characteristics: the rights they assert fall squarely within the doctrinal scope of IP laws, yet at the same time they almost entirely fail to map onto the policy justifications for those laws. (12) In other words, they follow the letter, but violate the spirit, of IP.

Each of the IP regimes invoked in these disputes typically imagines a distinct set of actors with a distinct set of needs typically operating in distinct cultural and economic domains. (13) Copyright incentivizes authors to produce creative works; trademark law protects commercial entities against false associations; publicity rights give individuals the right to authorize commercial uses of their identities. Each category of IP has a different duration, a different measure of infringement, and different set of defenses. Yet in the context of sex and death, IP regimes begin to blur. Rights holders do not appear to attach any particular significance to whether it is a "work," "mark," or "identity" that is appropriated in undesired ways by third parties; they instead care about the remedies that any combination of these regimes provide. (14) Copyright, trademark, and publicity rights may be doctrinally distinct, but all typically provide relatively easy access to injunctive relief, (15) secondary liability for Internet platforms, (16) the advantages of alienability, (17) and postmortem protections. (18) These shared qualities enable rights holders to effectively block the dissemination of undesired representations and to transfer control to others in a position to protect their privacy, autonomy, and dignity. In other words, IP is attractive not because any of its subcategories perfectly map onto the needs and experiences of rights holders, but because IP provides multiple ways of accessing the remedial toolkit of property.

Part II positions "non-traditional" IP assertions within broader scholarly debates about the role of IP rights in the digital age. As technological advances and empirical research on creativity continue to undermine the dominant incentives-based justifications for IP, (19) debates have emerged about whether there is a role for IP to play where it does not map onto an incentive justification, or whether IP justifications should be shifted to accommodate how those rights are actually used or valued. Although some scholars have been willing to expand the justificatory bases for IP, (20) most scholars nonetheless are reluctant to allow IP to become unmoored from authorship or intellectual labor. (21)

These debates, however, have too often excluded the voices and needs of individuals who use the IP system to shore up vulnerabilities they encounter in their everyday lives. Accordingly, Part III surveys a variety of IP disputes that implicate emotional and cultural entanglements and that are rather difficult to explain using the traditional, market-based principles of IP theory, such as incentives, authorship, or intellectual labor. The examination of non-traditional IP disputes will first turn to disputes concerning sexual autonomy and privacy and then turn to the noneconomic interests often asserted by heirs, family members, and similar successors-in-interest to IP rights. These individuals in Part III happened to become rights holders, either due to inheritance or the automatic vesting of copyright and publicity rights. These examples show that IP can be used to address a broad range of social and emotional vulnerabilities associated with the viral spread of images and text.

Part IV sets forth an understanding of IP as a tool for boundary management in these non-traditional cases. Through the proliferation of text-, image-, and video-sharing technologies, individuals today have unprecedented opportunities to participate in multiple social contexts, and IP allows individuals a means to negotiate the risks and rewards of social media and other digital platforms. Part IV suggests that IP enables individuals to better manage social boundaries and control the social representation of themselves and their loved ones against the cultural backdrop of big data aggregation and online harassment. IP laws, as a normative matter, have distinct practical and conceptual advantages that can usefully supplement other legal interventions, such as criminal statutes, privacy torts, contracts, and consumer protection laws, in protecting sexual autonomy and various forms of individual and family privacy. Part IV also proposes several doctrinal reforms that might follow from more explicitly embracing IP as a vehicle for sexuality, mourning, and privacy. These include improved privacy protections during copyright registration, greater uniformity in rights of publicity, and harmonization of free speech defenses across IP regimes.

2. IP'S SHIFTING TERRAIN

   In the United States, IP is traditionally understood to provide economic incentives for activities whose resource-intensive fruits are otherwise too easily appropriated by third parties without compensation. Copyright and patents protect artists and inventors whose activities are expensive to undertake but cheap to copy; (22) publicity rights incentivize celebrities to develop their public personae through rights in the commercial value of their image; (23) trademarks encourage commercial actors to invest in consumer goodwill and to build a valuable brand around an exclusively owned word or design. (24) While each area of IP has a distinctive narrative about a particular group of people, they all engage in some type of socially beneficial activity based on economic incentives. only recently has the consensus among scholars about the traditional economic-incentives argument started to erode, (25) particularly as digital technologies have yielded unprecedented amounts of freely available creative works. (26)

   At the same time, the widespread dissemination of creative technologies, combined with the broad substantive scope of IP statutes, has led to a widening universe of individuals with potentially cognizable IP interests. Given that copyright protection merely requires a "modicum of creativity," (27) every Facebook post, Instagram photo, and YouTube video created with a smartphone potentially gives rise to a new bundle of copyright interests. (28) Advances in highly targeted social media advertising mean that everyone's mother, neighbor, or acquaintance can provide commercial value to Facebook, Instagram, or Twitter through their "likes" and recommendations. In other words, everyone is a nascent trademark or publicity rights holder. (29) Moreover, these rights often descend--like other property interests--to families, friends, and other entities with a relationship to the decedent, bringing this new generation of rights holders' families and friends into the IP...