Rothman argues that
The state regulates sexual activity through a combination of criminal and civil sanctions and the award of benefits, such as marriage and First Amendment protections, for acts and speech that conform with the state’s vision of acceptable sex. Although the penalties for non-compliance with the state’s vision of appropriate sex are less severe in intellectual property law than those, for example, in criminal or family law, IP law also signals the state’s views of sex. In this Article written for the Stanford symposium on the Adult Entertainment industry, I extend my consideration of the law’s treatment of sex after Lawrence v. Texas to the context of intellectual property.
Sex has long played a role in determining the scope of IP protection, especially in the context of copyright and trademark law. At common law, works, inventions, and marks deemed sexually explicit or simply suggestive were denied the protection of the law. Even today they remain disfavored in some contexts. In this Article, I consider and critique some of the ways IP law continues to devalue and channel sex. Part I of the article considers trademark law’s explicit and implicit disfavoring of sexual content. This is most evident in trademark dilution law, where courts have read in an explicit prohibition on using marks or colorable imitations in sexual contexts. Part II analyzes the ways that copyright law continues to treat works with sexual content differently and sometimes less favorably than other works. Finally, Part III situates IP law’s treatment of sex in a broader critique of the law’s sex exceptionalism and normativity. Using copyright and trademark to channel sex provides yet another avenue for the law (and in this case art and commerce) to shape a vision of sex that is narrow, discriminatory, pejorative, and exclusionary. A consideration of the treatment of sex in IP highlights some of the dangers of the differential treatment of sex in general and also some of the pitfalls of using the IP system to further goals unrelated to its core missions. Ultimately, works, marks, and uses of them should not be disfavored solely because they have sexual content nor should courts be in the business of assessing what constitutes good or bad sex.
IP law not only contributes to the legal construction of sex, but also has a particularly significant multiplying effect on the social construction of sex be- cause IP law influences cultural artifacts, such as movies, books, plays, and products and services, that themselves shape our culture’s construction of sex. The parameters of IP law encourage creators, companies, and users into safe zones where they are more likely to get copyright protection, register a mark or benefit from fair use or other defenses to infringement and dilution. Thus, the law can stigmatize works and marks with sexual content or certain forms of sexual content, thereby contributing to the channeling of sex into limited acceptable forms.
Instead of “recognizing the diversity of sexual and intimate relations wor- thy of respect and protection,” courts often have imposed their views of what constitutes “good sex.” IP laws therefore harm individuals living both within and outside the legal construct of acceptable sex. For those who cannot conform, the legal and social disapproval can cause psychological and physical harm and negatively affect their relationship to themselves, their sexuality, and their place in society. The laws also discourage some, who otherwise might wish to or would benefit from doing so, from departing from the dominant construction of sex. IP laws therefore interfere with our ability to develop and embrace a more positive relationship to sex. In the context of this symposium on the adult entertainment industry, this sex exceptionalism and normativity reveal that the industry may fare worse in some IP disputes than other industries. But the scope of this project sweeps more broadly than the adult entertainment business and pornography. A con- sideration of the treatment of sex in IP highlights some of the dangers of the differential treatment of sex in general and also some of the pitfalls of using the IP system to further goals unrelated to its core missions. Few, if any, scholars have made these connections.