Copyright Law and the Commoditization of Sex


There are a number of perspectives from which one can parse and analyze laws; formalism, legal realism, law and economics, and feminist legal theory are but four of them. While female legal scholars like myself hold the same diverse range of views as our male counterparts, women are far more likely to be feminist legal theorists. One feminist method for evaluating a legal regime is to map the ways in which a body of law impacts women differently than men. When it comes to copyright law, a number of astute observations have been made by women legal scholars about the ways in which art forms that are traditionally perceived as falling within the female sphere (e.g., cooking, sewing, hair styling, and make-u p application), or otherwise identified with women, are less likely to be protectable by copyright than creative categories that are gender neutral on the surface, although often dominated by men. This chapter evaluates an unconventional area, namely, the impact of copyright law on a category of works that heavily relies on human bodies engaging in a fairly narrow range of physical interaction s that may result in endangering or damaging the "performers," who are disproportionately female. Specifically, this chapter explores the relationship between copyright law and pornography.

In the late 1980s and into the early 1990s, pornography was a hot topic for the legal academy, which gave rise to passionate disagreements. Often these disagreements were characterized by distinguished scholars as a war pitting the supporters of free expression and sexual liberation against the forces of prudery, censorship, and repression. Liberal libertarians and libertarians generally seemed to have a compelling case in favor of pornography: sexual expression is appropriately protected as free speech because people ought to be free to have sex, talk about sex, write about sex, film sex, and view sex any way they like without government interference. By contrast, arguments in favor of government regulation of sex made little sense to me. Given its history with birth control and abortion, it seemed like the less the government was involved with sex, the better. However, I wanted the government to intervene in cases of rape and sexual abuse. I also wanted a legal remedy for sexual harassment, as vulnerable or victimized people could benefit from government intervention, even where sex was involved.

Publication Date



Cambridge University Press

Document Type

Book Chapter