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Law Professor Plumbs Depths of Conflict Between Property Protection and Free Speech


Sonia Katyal, professor of law
Photo by Michael Dames

What’s the first thing you think of when you hear the word “Cherokee?” If Jeep sport-utility vehicles come to mind, you’re a link in the chain of commercial branding, a phenomenon that fascinates Sonia Katyal.

An associate professor at the Fordham School of Law, Katyal specializes in intellectual property and civil rights. She is one of the few young law professors in the country to claim more than four national awards for her work—including a Warhol Grant, a Yale Cybercrime Award and an honorable mention from the American Association of Law Schools.

Moreover, she has appeared in a slew of top publications—from the Yale Law Journal to theLos Angeles Times.

In “Semiotic Disobedience,” a paper published last year in the Washington University Law Review, she focused on groups that alter commercial messages in an attempt to subvert their meaning while retaining their power to influence.

One such group is the San Francisco-based Billboard Liberation Front, which modifies the text on outdoor advertisements. In a classic example, the group reworked a Johnny Walker billboard bearing the words “Drink Responsibly” so that passing motorists saw, “Drink Yourself Blind.”

While living on the West Coast in the 1990s, she witnessed several instances of this phenomenon, known as culture jamming.

“I’m fascinated with how popular culture depicts the law, and I’m also interested in how the law regulates popular culture,” said Katyal, who worked for Covington and Burling before joining Fordham in 2002. “When we live in this world of brands and commercial images, how do artists respond? How do indigenous people respond?”

In New York City, she noted, there is a community of artists who monitor commercial images—everything from the Land O’ Lakes woman to Apache helicopters. But as the Jeep Cherokee example illustrates, corporations can rarely claim exclusive ownership of symbols or brands. Intellectual property law protects trademarks and copyrights, but the First Amendment of the U.S. Constitution protects freedom of expression. Therein lies a clash.

“Intellectual property is the center of that conflict, because it’s expressive in the sense that it involves speech, it involves art and it involves what you say,” Katyal said. “But it also involves property. So it involves owning those devices of speech or brands.”

Her recent paper is the basis for Anti-Branding, Katyal’s forthcoming book that was funded by a grant from the Warhol Foundation. Renowned pop artist Andy Warhol’s paintings of Campbell’s Soup cans are among the most famous examples of using a brand in the service of artistic expression.

Anti-Branding is meant to provide a framework for understanding actions that might be written off as simple vandalism. It’s a reoccurring theme in Katyal’s research, notably in Property Outlaws (Yale University Press, 2008), which she co-wrote with colleague Eduardo M. Peñalver. In her work, Katyal shows how groups as disparate as artists, activists and Native Americans have much in common when it comes to asserting identities.

“I’ve always been somebody who thinks a lot about who gets excluded from different areas of protection and why this happens, both inside and outside of the law. Let’s say that you’re part of an organization that doesn’t extend protection to gay and lesbian individuals. How do we think about how the law should mediate that?” she said.

“What does it mean for a property to benefit one group, but not others? When I think about indigenous people’s issues, it’s actually a very similar framework,” she continued. “Here you have these groups and individuals that are governed by a standard of law that has excluded them in a lot of ways and hasn’t had their best interests at heart.”

The field is a fluid one, as ethnic stereotypes used in marketing have fallen by the wayside and street artists such as Shepard Fairey have gained acceptance in the mainstream art world. Fairey gained attention by producing cryptic prints of dead wrestler Andre the Giant as part of what would become his “Obey Giant” campaign. He has since gone on the design some of Barack Obama’s campaign posters.

“You see that a lot in communities that work in graphic design, where people seek attention by wheat pasting or stickering or doing something that invades, or I guess one could say intercepts, public space,” she said.

On the other hand, corporations are holding on to trademarks more tightly than ever, as exemplified by the Walt Disney Company’s recent success in convincing Congress to extend the copyright of Mickey Mouse beyond the traditional 75-year limit. It is not clear if there’s a link between restrictive intellectual property rights and unauthorized tampering, but there is a definite tension that needs to be explored, she said.

“The focus of artistic expression has been to create art and create ways of thinking, to propel others to think about things in the same way. So it may help if people are militating against the rule of law, but I don’t think it’s necessary,” Katyal said. “People would create no matter what. I just think that nowadays you just have more stridence, because there are standards of governance that people might disagree with.”

When it comes to indigenous people’s struggles, Katyal said her favorite example is Jason Lujan, an American Indian artist who was tired of seeing Indians always lose in video games. He hacked into a game and reprogrammed it so the Indians would win, and then uploaded it to the Web, where unsuspecting gamers downloaded it instead of the original game.

“That is really smart—finding ways to interrupt the way that people generally think about indigenous people,” Katyal said. “He’s a great example of the kind of artist that I look at. This is someone who has a day job but spends his time trying to figure out how to capture and respond to a culture that, in some ways, has excluded the interests of Native Americans.”


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