Sarid (2014)

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1. Relationship between protection (subject matter/term/scope) and supply/economic development/growth/welfare 2. Relationship between creative process and protection - what motivates creators (e.g. attribution; control; remuneration; time allocation)? 3. Harmony of interest assumption between authors and publishers (creators and producers/investors) 4. Effects of protection on industry structure (e.g. oligopolies; competition; economics of superstars; business models; technology adoption) 5. Understanding consumption/use (e.g. determinants of unlawful behaviour; user-generated content; social media)

A. Nature and Scope of exclusive rights (hyperlinking/browsing; reproduction right) B. Exceptions (distinguish innovation and public policy purposes; open-ended/closed list; commercial/non-commercial distinction) C. Mass digitisation/orphan works (non-use; extended collective licensing) D. Licensing and Business models (collecting societies; meta data; exchanges/hubs; windowing; crossborder availability) E. Fair remuneration (levies; copyright contracts) F. Enforcement (quantifying infringement; criminal sanctions; intermediary liability; graduated response; litigation and court data; commercial/non-commercial distinction; education and awareness)

Source Details

Sarid (2014)
Title: Don’t Be a Drag, Just Be a Queen—How Drag Queens Protect their Intellectual Property without Law
Author(s): Eden Sarid
Year: 2014
Citation: Sarid, E. (2014) Don’t Be a Drag, Just Be a Queen—How Drag Queens Protect their Intellectual Property without Law. 10 FIU L. Rev. 133.
Link(s): Open Access
Key Related Studies:
Discipline:
Linked by: Fagundes and Perzanowski (2019)
About the Data
Data Description: Data were obtained from semi-structured interviews with 11 Israeli drag queens, and 3 interviews with venue owners. Responses were coded in relation to the drag queen’s perceptions of social practices in regards to IP protection.
Data Type: Primary data
Secondary Data Sources:
Data Collection Methods:
Data Analysis Methods:
Industry(ies):
Country(ies):
Cross Country Study?: No
Comparative Study?: No
Literature review?: No
Government or policy study?: No
Time Period(s) of Collection:
Funder(s):

Abstract

“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.”

Main Results of the Study

Copyright fails to offer adequate protection to the intellectual creations of drag queens, including to their performance and personae. This is in part due to problems of establishing originality (having few “building blocks” and a large public domain), a belief that any derivative works in performance are unprotect able (e.g. if performing to a song owned by a third party that this is essentially theft), and problems with fixation (drag acts being composed of a multitude of singing, performance and stand-up). In absence of legal protextion, this domain becomes extra-legal, with intra-social norms offering an ordering system in absence of IP. The study identifies several key features of this system:

• Whilst copyright is largely absent, the ordering system bears resemblance to norms in support of attribution and in opposition to appropriation. The author refers to this as “gentlewomen’s understandings” within a close-knit community, which is bolstered with some hard rules against verbatim copying of drag queen names, appearances, and use of signature songs or performances.

• Where appropriation does occur, the community has its own enforcement system through boycotts, professional isolation and humiliation. However, the community as a whole relies on an ex-ante approach to prevent appropriation, largely by establishing certain territory both geographically and by genre.

• The community also relies on the social norms of users (e.g. non-queens) to detect and report appropriation, a community which in themselves value originality and penalise free-riders.

• Part of the hesitation to engage with copyright is due to the overarching message of the drag queen community itself, namely to challenge mainstream conventions (rather than codifying norms in hard law).

Policy Implications as Stated By Author

The author finds that drag queen creative assets are adequately protected by their own social norms. As such, they caution against an expansion or adaptation of existing IP laws into this area, which may be a less effective means of protecting both the creators and the publics interest. Furthermore, the study illustrates that decisions not to engage in the copyright system are a conscious choice, which may be an integral part of a community’s own counter-culture.


Coverage of Study

Coverage of Fundamental Issues
Issue Included within Study
Relationship between protection (subject matter/term/scope) and supply/economic development/growth/welfare
Green-tick.png
Relationship between creative process and protection - what motivates creators (e.g. attribution; control; remuneration; time allocation)?
Green-tick.png
Harmony of interest assumption between authors and publishers (creators and producers/investors)
Effects of protection on industry structure (e.g. oligopolies; competition; economics of superstars; business models; technology adoption)
Understanding consumption/use (e.g. determinants of unlawful behaviour; user-generated content; social media)
Coverage of Evidence Based Policies
Issue Included within Study
Nature and Scope of exclusive rights (hyperlinking/browsing; reproduction right)
Green-tick.png
Exceptions (distinguish innovation and public policy purposes; open-ended/closed list; commercial/non-commercial distinction)
Mass digitisation/orphan works (non-use; extended collective licensing)
Licensing and Business models (collecting societies; meta data; exchanges/hubs; windowing; crossborder availability)
Fair remuneration (levies; copyright contracts)
Enforcement (quantifying infringement; criminal sanctions; intermediary liability; graduated response; litigation and court data; commercial/non-commercial distinction; education and awareness)

Datasets