2/24/2011

Roller derby's lessons for trademark and right of publicity law

I remember watching roller derby on television with my grandmother, decades ago when I was just a young boy. Little did I know then that I would be a law professor some day, or that roller derby would have something to teach me about trademark or right of publicity law, both of which I have taught to students out of thick and heavy casebooks. Suddenly, up from the inside track (or would it be down from the outside track?), Southwestern Law School professor David Fagundes points out what I didn't see, all those years ago in my grandmother's living room: roller derby skaters protect their on-track names using their own private systems, rather than traditional trademark or right of publicity law. In Talk Derby to Me: Emergent Intellectual Property Norms Governing Roller Derby Pseudonyms, David explains why lawyers might be interested in roller derby's system for name protection:
This qualitative empirical study . . . examin[es] how roller derby skaters regulate the pseudonyms under which they perform. Roller derby names are a central part of this countercultural, all-girl sport, adding to its distinctive combination of punk and camp. Skaters have developed an elaborate rule structure, registration system, and governance regime to protect the uniqueness of their skate names. The emergence of this extra-legal governance scheme despite the ready availability of IP theories (e.g., trademark, rights of publicity) to protect derby names challenges a central tenet of the prevailing literature that such norms emerge only where IP law has no substantive application. This analysis of derby names shows that IP norms emerge independently of law’s (un)availability, so long as the relevant group is close-knit and the norms are welfare-maximizing. These groups are especially likely to craft elaborate regulation and registration schemes where the relevant community is identity-constitutive, and where the intangible goods arise from nonmarket production. This study critiques existing explanations for IP norm emergence; suggests a counter-theory for the emergence of user-generated IP governance systems; casts further doubt on the adequacy of prevailing neoclassical economic assumptions underpinning IP doctrine; and calls into question what it means for rules to be law.