A Queer Analysis of Intellectual Property

Intellectual property (IP) is a legal framework associated with economic rationality and that is supposedly neutral toward diverse manifestations of sexuality, gender identities, and unorthodoxy in the cultural landscape. But is that the case? This Article proposes a queer analysis of IP, asserting that IP is a major mechanism through which sexuality, gender, citizenship, and normativity are institutionalized and hierarchized in cultural and social life. Applying two interconnected methodologies—examining creative spaces in which queer creativity thrives, including drag, fanfiction, and the Queercore punk subculture, and appraising several IP doctrines through a queer theory lens—this Article demonstrates how queer creative communities organize and resist IP and mainstream culture and illustrates how IP law institutionalizes hegemonic notions of normativity, sexuality, and culture. This Article also exposes a counterintuitive nexus between IP law and queer theory, showing that while IP structures a hegemonic culture, it simultaneously defines a field of marginal cultural production based on a rejection of IP’s rules and aesthetics. This Article then suggests a reparative reading of queer theory and IP, holding that queering IP allows us to better appreciate the value of queer theory and queer creativity to wider discourses around normativity and meaning, as well as to promote diversity and visibility of nonconforming sexualities and identities in cultural and social life.