Intellectual Property in Experience

Madhavi Sunder*

In today’s economy, consumers demand experiences. From Star Wars to Harry Potter, fans do not just want to watch or read about their favorite characters—they want to be them. They don the robes of Gryffindor, flick their wands, and drink the butterbeer. The owners of fantasy properties understand this, expanding their offerings from light sabers to the Galaxy’s Edge®, the new Disney Star Wars immersive theme park opening in 2019.

Since Star Wars, Congress and the courts have abetted what is now a $262 billion-a-year industry in merchandising, fashioning “merchandising rights” appurtenant to copyrights and trademarks that give fantasy owners exclusive rights to supply our fantasy worlds with everything from goods to a good time. But are there any limits? Do merchandising rights extend to fan activity, from fantasy-themed birthday parties and summer camps to real world Quidditch leagues? This Article challenges the conventional account, arguing that as the economic value of fantasy merchandising increases in the emergent “experience economy,” intellectual property owners may prove less keen on tolerating uncompensated uses of their creations. In fact, from Amazon’s Kindle Worlds granting licenses for fan fiction, to crackdowns on sales of fan art sold on internet sites like Etsy, to algorithms taking down fan videos from YouTube, the holders of intellectual property in popular fantasies are seeking to create a world requiring licenses to make, do, and play. This Article turns to social and cultural theories of art as experience, learning by doing, tacit knowledge, and performance to demonstrate that fan activity, from discussion sites to live-action role-playing fosters learning, creativity, and sociability. Law must be attentive to the profound effects these laws have on human imagination and knowledge creation. I apply the insights of these theories to limit merchandising rights in imaginative play through fair use, the force in the legal galaxy intended to bring balance to intellectual property law.

* Professor of Law, Georgetown University Law Center. Thanks to Bruce Ackerman, Greg Alexander, Michelle Anderson, Jack Balkin, Barton Beebe, Mario Biagioli, Anupam Chander, Tom Conley, Julie Cohen, Francesca Coppa, Joe Dumit, Laura Grindstaff, Michael M.J. Fisher, Sheila Foster, Peter Menell, Naomi Mezey, Martha Nussbaum, Paul Ohm, Kriss Ravetto, Jennifer Rothman, Brian Rotman, Joseph Singer, Brian Soucek, Jay Thomas, Rebecca Tushnet, Robin West, Katrina Wong, and the faculties at the Georgetown University Law Center, the University of Minnesota School of Law, and the UC Davis School of Law for engaging conversations. Thanks also to all of the participants in the “Intangibles: Immaterial Vectors, Agents, and Effects” conference at the Harvard Humanities Center and to the participants at the “Progressive Property Scholars” workshop at Harvard Law School. This Article also benefited from presentations as the Mitchell Lecture at the SUNY Buffalo School of Law, and as the Dykstra Endowed Chair Lecture at the UC Davis School of Law. Special thanks to Marisela Bernal and the UC Davis School of Law research librarians for excellent research assistance, and to the fabulous Michigan Law Review editorial team.

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