Overview of Feminist Legal Theory [Textile Related] - Ann Bartow

There have been three highly publicized quilt-related lawsuits over copyright issues of which I am aware, Brown vs McCormick (about the quilt used in the film "How to Make an American Quilt"); Ringgold vs Black Entertainment Television, Inc. (about the use of a poster with her quilt image on the set of Roc - see http://www.ncac.org/art-law/op-ring.cfm to read the full court opinion); and the recent lawsuit filed by Paula Nadelstern against a hotel that used her Kaleidoscope designs for their carpet (Ami Simms has a good post about this on her blog). - Gwen Magee

My scholarly specialty is intellectual property law, which is comprised of three discreet areas: Copyright law, patent law, and trademark law. Cyberspace law sometimes gets thrown in for good measure as well, since so many legal issues on the Internet involve some facet of intellectual property law. Using the personal narrative format, I will try to illustrate the categories of feminist legal theory I set out above, and I will do this by talking about quilts.

Quilting is a largely female identified art form that does not mesh well with copyright law because quilts are functional, rather than being merely decorative; because quilters use a lot of repetition, such as a particular pattern to represent a wedding, or to symbolize the birth of a child, and these features are intentionally echoed (indeed “copied”) in many later quilts; and because quilts are often designed and executed by amorphous groups (e.g. during “quilting bees”) rather than by a single heroic author. Congress has never attempted to write a provision of the Copyright Act that was specifically applicable to quilts, even though it has done so for many other discreet art forms, categories of writings, and specific technologies. Is this because quilting is viewed as unimportant? And if so, is quilting viewed as unimportant because it is perceived to be the provenance of women? These are the sorts of queries feminist legal theory raises.

The equality approach might ask whether there were “male identified” art forms that are similarly ignored by copyright law. The difference approach might ask whether women are better served by keeping copyright laws away from quilting. The dominance approach might ask why women were quilting at all, instead of using their time and talents to pursue more lucrative and culturally respected art forms. The intersectionality approach might ask whether women of particular races or economic classes quilted more than others, and if this could be part of the explanation for why copyright law ignored quilts. I would initially try to use all these approaches to analyze the interplay (or lack thereof) of quilting and copyright law. However, if I wanted to do more than describe the situation, I’d have to recommend either a change in the law, or a change in the way courts apply and interpret current law. This would require me to favor one theoretical approach over the others, based on what I though the superior normative solution was.

Because I believe that a “low barriers” approach to copyright law is best, I’d be reluctant to recommend adding a specific quilting provision to the Copyright Act if it meant that quilters could more easily assert copyright claims against each other. This would degrade the quilting culture of copying and group authorship that strikes me as socially valuable, so I would reject an “equality” approach that made quilting “equal” to drawings and sculptures. In doing so I would be embracing the “difference” approach, because my views clearly reflect a belief that quilting is different in part because it is women identified, and these differences are beneficial, so the law should preserve them. However, by reifying difference in this manner, I might also be condemning quilting to second class status. It is certainly possible that if the copyright laws treated a quilt more like an oil painting, society might follow suit, and this would elevate the social and economic status of quilters. Valuing “difference” too greatly might preclude this. Applying dominance theory would require me to recognize that women may turn to quilting because they are subordinated by men who deny them access to other creative outlets. It would therefore make more sense to devote resources to reducing impediments to women’s full participation in the fine arts, rather than simply attempting to amend the Copyright Act on behalf of quilting.

One problem with this approach is that quilters may be deeply offended, and wonder why what they do is not being valued. Some will question whether the merits of quilting are being disregarded because quilting is so closely aligned with women: Is quilting getting short shrift because it has “girl cooties”? Others will ask whether, because they prefer quilting to oil painting, they are being accused of “false consciousness,” meaning they are assumed not to recognize that by quilting rather than pursuing other artistic endeavors, they are complicit in their own oppression. I struggle with all this, because while I recognize that framing the world in terms of dominance and subordination tends to abrade the sensitivities of many women, it also seems intuitively correct to me. When I visit a major museum and notice that only a tiny fraction of the exhibited works have been created by women, I don’t blame quilting. I love well made handmade quilts, and I know that producing them requires a lot of specialized effort and skill. But I also recognize that the artistry responsible for them might have been channeled into more “museum worthy” forms of artistic expression if the talents and skills of women had been nurtured and developed for centuries along with those of men.

It is very difficult to reassure quilters that you value and appreciate their work, while simultaneously asserting that quilting is a symptom of subordination. How can upsetting and offending quilters possibly forward the goals of feminism? It’s a very hard question, and one that reappears in some form or another every time dominance theory is applied to social phenomenon.

The intersectionality approach requires me to consciously stop thinking about quilting from a white, middle class perspective and do some research about the role of quilting in the artistic, social and economic lives of women of difference races and in different economic groups than my own. If I specifically determine that the importance of quilting to (for example) poor women is greater than it is to more affluent women, I need to make sure my analysis, and any recommendations I make, take this into consideration. Maybe this means that I will recommend legal changes that would privilege quilt makers (who are mostly women) over quilt sellers (who may be mostly women), and also over quilt buyers (who may also be mostly women). Thinking about the relationships and conflicts between various groups of women can be difficult, but it is also both worthwhile and necessary. While it is certainly possible that if we took over the world, women would start acting just like men, I hold out hope (quite possibly “essentialist” hope, if truth be told) that we could do a bit better, and intersectionality theorists remind feminists that our true project is to build a better world for all women, not just ourselves.

The entire article is accessible at:

http://feministlawprofs.law.sc.edu/?p=1227

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Ann Bartow is an active contributor
to the Feminist Law Professors Blog.
Please visit it for an eyeful of some very interesting
(though non-textile related) postings

http://feministlawprofs.law.sc.edu/

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Ann Bartow is an Associate Professor at the University of South Carolina School of Law teaching "...Intellectual Property Survey Law, Copyright Law, Trademarks and Unfair Competition Law, Cyberspace Law, and Constitutional Law II — Individual Liberties. She has also taught Patent Law and Property, and in practice specialized in patent litigation. Her scholarship primarily focuses on the intersection between intellectual property laws and public policy concerns."