The paper is an empirical study of the way drag queens protect their intellectual property without reverting to formal intellectual property law. It identifies that substituting for the law is a double-layered social norm system devised by the queens in which the creators (the queens) as well as the users of the domain influence its norms and enforcement. The paper outlines the incentives that queens have for creating drag; the unique social structure and the distinctive subject matter of the domain; and the special relationships that the queens have with their audience. It holds, that this structure allows for the creation of a well tailored and functioning social norms system. The paper delineates the reasons why intellectual property law cannot accommodate for the queen's creations; and it presents the norm system the queens developed in order to prevent appropriation. The paper outlines the advantages of the social norms system – a structured, better tailored and flexible ordering regime; as well as possible disadvantages such as lack of IP policy and concerns regarding powerful guilds blocking creativity. The paper also addresses the idea of a creative domain that wishes to challenge law, rather than become a part of it. The paper concludes that the drag domain holds important lessons for the general intellectual property discourse.
As the lights are dimmed, Dame Shirley Bassey's Get the Party Started starts playing; from behind the curtains the Dame's (almost perfect, though a bit extravagant) lookalike appears and indeed gets the party started. By the end of the evening the performer, a drag queen, changed at least five wigs and eight dresses, changed makeup several times, and performed eight different choreographic routines. An enormous amount of time and intellectual labor was invested in finding the best songs for the show, devising the best dance moves and perfect lip-sync, matching the perfect dress and wig, and fitting the exact make-up. Inevitably, the fruit of this intellectual labor – the drag show, is at risk of being appropriated as a fellow queen may easily copy the moves and costumes of the original performer, and put on a rival show of her own. One would assume that if such a scenario was to happen, a lawsuit against the appropriator, on the grounds of copyright infringement would soon follow. However, drag queens do not revert to copyright law, or any other formal legal course of action. The reason is, apparently, because copyright law fails to offer drag queens an effective way to protect their intellectual creations, but a different ordering system does.
Common intellectual property (IP) wisdom would have us thinking that in such a case the creative domain of drag performances ("the drag domain") is destined to become a creativity wasteland, since creators would not be able to recoup adequate rewards for their creation and thus refrain from investing time and effort in the first place. Nevertheless even without formal legal regulation, the Israeli drag domain is thriving, with more shows and more queens than ever before. This article aims to figure out how this happens, and what the lessons this phenomenon might hold for IP theory and policy.
The drag domain is not alone. Recent studies examined other domains of intellectual creativity that flourish without (or with only a low level of) IP legal protection, what we might call extra-legal domains. Scholars explored fashion, stand-up comedy, graffiti, high cuisine, magic performances, tattoos, typefaces and even roller derby pseudonyms, to name just a few. The main endeavor of the scholarly literature on extra-legal domains was to explain how the domains flourish despite lack of (or minor) legal regulation. The answer that has thus far surfaced suggests that the extra-legal domains substitute for the legal regulation (i.e., legal protection) by reverting to social norms which are usually practiced amongst the cadre of creators (or, in a few cases, a fashion cycle). Here I shall call them intra-social norms.
Based on a series of extensive interviews with Israeli drag queens, as well as a few interviews with owners of venues in which the drag performances take place, this study suggests that the drag domain, like most other extra-legal domains, extensively relies on an intra-social norm system to regulate the protection of its participants' intellectual creations. However the drag domain contains yet a second layer of social norms as additional means of protection. Whereas the drag queens themselves practice the first layer of protection, namely the intra social norms, it is other players in the drag scene who practice the second layer of social norms. I shall call this second layer – correlated-social norms.
The intra-social norms, as well as the correlated social norms that regulate the drag domain jointly create what we might call the drag social norm system – a normative system, based on social ordering, aimed at protecting drag queens' intellectual creativity. As I discuss later on, the drag norms system follows some of copyright law's principles such as norms against appropriation and norms regarding attribution. However, the drag norm system also differs significantly. For example, the drag norms provide protection for concepts and ideas, seem to present no fair-use style qualifications to ownership, and confer much shorter ownership terms. This norm system has developed a well operating enforcement mechanism, based, both on intra and correlated social enforcement.
Building on the observations derived from the empirical study of the Israeli drag domain, this article focuses on the question of what makes the drag domain's social norm system function so well. I suggest that the social norms' ability to reflect the creators' incentives for creation; to consider the different users' role in the regulation of the domain; to reflect the unique social and physical environment of the drag domain; to produce modular sanction and ownership as well as duration mechanisms; to consider the identity of the infringer(s); and the ability to change and adapt easily – are the reasons that this domains functions so well and is ever so abundant. In short – the drag norms being a well tailored and flexible system (vis-à-vis copyright law being a uniform, rather rigid system). However, the study also suggests some disadvantages to the drag domain's social norms system. Thus, I discuss also this system's drawbacks such as lack of ability for impartial policy makers to dictate limitations and exceptions; the propertization of ideas; and mob justice.
The article concludes that the study of the drag domain makes a strong case for social ordering in IP. I suggest that the drag domain challenges the common conception according to which lacking legal regulation a creative domain is destined to a market failure. The study of the drag domain, the article concludes, suggests that we should be cautious when we examine the possibility of juridification of socially regulated creative domains. The article accentuates the importance of considering all the individuals that are part of the drag domain's regulation. And that the ideas, the messages, that a creative domain wishes to convey as such must also be taken into consideration. While I claim that IP policy makers should consider these factors; this does not imply that social ordering is necessarily better than legal ordering, but rather that it is an option that must be thoroughly considered in the IP policy discourse.
The article progresses in several stages. Part I sets the scene – it explicates the term drag queen, gives a short historical background, and outlines the structure of the drag domain, including delineating its subject matter and the queens' incentives for creation. Part II explains why copyright law and other IP laws fail to protect the queens' intellectual creations. Part III details the main empirical findings; it describes the drag domain's set of IP norms, namely norms against appropriation and moral norms of attribution. Part IV addresses the question of what makes the drag domain's social norm system function well, and what its possible downsides are. It also explores the ideas and message the drag domain as such wishes to convey, and the meaning of this with regards to the IP discourse. Part V concludes by suggesting that the drag domain offers important lessons for the IP world.