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“Patents and Perverts,”

or,
“How Shifting Gender and Sexuality Norms in Late 19th Century America,
Conceptually Mapped Onto “Decorative” and “Ornamental” Objects–and
the Primary Body of Law Governing the Reproduction of Those Objects–
Contributed to the Marginalization of U.S. Design Patents, Producing
Doctrinal Distortions in Multiple Areas of IP That Persist Today”

by

Charles E. Colman
Acting Assistant Professor of Lawyering, NYU School of Law
Adjunct Professor, NYU Steinhardt, Visual Culture: Costume Studies
This presentation was given at Marquette Law School’s Inaugural “Mosaic” Conference; © 2014 Charles E. Colman

Overview

In this project, I advance the argument that U.S.
design-patent law experienced a quiet transformation
in its effective purpose in the late Nineteenth Century,
and that this transformation was driven in large part
by a contemporaneous destabilization of gender and
sexuality norms in the politically dominant segments
of Anglo-American culture.

Overview (cont’d)
From the first murmurs of the possibility of design-patent
protection in the 1830s well into the second half of the
nineteenth century, mainstream American legal rhetoric
described design patents as a vehicle for promoting the
progress of the “decorative arts.” During the same time
period, however, popular connotations of “decoration” and
“ornament”—especially in relation to gender and morality—
were undergoing an evolution in American culture.
By the last quarter of the Nineteenth Century, much of the
“ornamental” material under the primary legal purview of
the design-patent regime had drifted into a “connotative
cluster” that included traits like “frivolity” and “effeminacy.”

Overview (cont’d)
By the 1890s, social developments provoking anxiety about sex
roles in society, along with high-profile events (like the
scientific “discovery” of homosexuality and the internationally
followed sodomy trials of Oscar Wilde, well-known “aesthete”
and advocate of “beautiful things” for the home), had expanded
the connotative cluster surrounding ornament and decoration
to include such socially unacceptable characteristics as “moral
decay” and “perversion.”
American federal judges, acting in response to these changing
social norms and the increasingly “coded” nature of the objects
over which design patent protection was claimed, began to
enforce (or decline to enforce) such patents based not on the
increasingly suspect public policy of promoting the “decorative
arts,” but rather on the seemingly unimpeachable objective of
promoting commerce through unfair-competition principles.

Overview (cont’d)
The rhetorical and doctrinal innovations of fin-de-siècle
judicial decisions effectively transformed U.S. design-patent
protection from an incentive for the creation of art (somewhat
in the vein of twentieth-century copyright) to an incentive for
investment in industrial ventures (arguably in the vein of latetwentieth-century trade-dress protection for product design),
to essentially a dead letter (once formal product-design tradedress rights were recognized by the courts.)
While this shift rendered design-patent jurisprudence
reconcilable, at both the psychological and social level, with
prevailing heterosexual male values and concerns, it did so at
the expense of design-patent protection’s effectiveness in
accomplishing its original purpose. Further, the resulting
marginalization of design patents produced doctrinal
distortions (“conceptual separability,” “aesthetic functionality,”
etc.) in other areas of intellectual property that “stepped in.”

Origin of this project
While writing a treatise (now a series of law review articles) on IP
protection for fashion design, I came across many judicial opinions
that were openly dismissive of the subject matter in dispute. When
asked to submit a short article to the fashion-studies journal Vestoj,
I compiled key quotations from some of the decisions in question…

Charles E. Colman, Fashion, Sexism, and the United States
Federal Judiciary, 4 VESTOJ 53 (2013) (“The U.S. federal judiciary has
frequently displayed a dismissive attitude toward fashion, while
simultaneously recognizing the great economic importance of clothing.
As fashion was, from the formation of the United States until at least
the late 1960s, associated primarily with the female sex . . . , one
naturally wonders whether the power dynamics of gender shaped
the development of the law pertaining to fashion. There is good reason
to believe that this has indeed been the case.”)

But I came to suspect that there was
something more going on in the judicial mind
Franklin Knitting Mills, Inc. v. Gropper Knitting Mills,
15 F.2d 375, 375 (2d Cir. 1926), cert. denied, 273 U.S.
761 (1927) (emphasis added):
“[Ties] are bought, not only because of their utility to
the wearer and their attractiveness to others when
worn, but also because of the appeal, as novel,
ornamental, and pleasing, that the design makes to
the aesthetic sense of the purchaser, offtimes [sic] the
wife, sweetheart, or female relative of the man who is
to wear it.”

As I examined a variety of sources drawn from
diverse disciplines, my thesis began to take shape
DAVID KUCHTA, THE THREE-PIECE SUIT AND MODERN
MASCULINITY: ENGLAND, 1550-1850, 7 (2002):
“Manners and material culture gave shape to ideological
processes; material signs formed and informed systems of
power, rather than standing outside them in some exterior
symbolic realm. [Footnote omitted.] Thus while ideas of
masculine character were constructed by changing political
ideologies, political ideologies in turn were constructed
around changing notions of character . . . . [I]t is necessary to
reconsider the epistemology that sees cultural artifacts as
merely symbolic of changes in other, more real realms. We
must rethink the relationship between symbol and substance,
between cultural practices and the social, political, and
economic realities that presumably stand behind them.”

The emerging picture suggested that there
was far more than “mere sexism” at work
ELAINE SHOWALTER, SEXUAL ANARCHY: GENDER AND
CULTURE AT THE FIN DE SIÈCLE 2 (1991) (emphasis added):
“The distance between [Darwin and Mills,] Avignon and
Wales, stone house and hillside, nurture and nature
precisely delimits the controverted terrain of the ‘woman
question’ in Anglo-American science in the late nineteenth
century. The moment was one in which social and scientific
developments converged to create the possibility and
urgency of a science of male and female nature and of the
differences between them. Such a science would, it was
believed, shed light on vexing social issues raised by
changes in women’s roles and status that were taking place
during the middle and later nineteenth century.”

How to interpret language like this, for example?
Charles Boldt Co. v. Turner Bros. Co., 199 F. 139 (7th Cir.
1912) (emphasis added):
“Whether or not the device of a design patent satisfies the
requirements of the statute is a matter to be determined from
the impression it makes upon the mind through the eye. If it
is pleasing, and found to be new and original, upon an
inspection of the disclosures of the prior art and use, and, in
addition, leaves a distinct sensation of an unusual and
desirable form or arrangement of forms upon the mind, while
at the same time its suggestions are wholesome and proper,
then, as a rule, it may be sustained as a device within the
statute, even though the elusive ‘spark of genius’ may have
assumed the humble luminosity of the glowworm.”)

So, what wasn’t “wholesome and proper”?
ELIZABETH E. GUFFEY, RETRO: THE CULTURE OF REVIVAL 34
(2006) (“In Britain, the [Art Nouveau] style was increasingly
associated with aestheticism and particularly with Oscar
Wilde, who had been imprisoned for homosexuality in 1895.
‘Pillory, L’Art Nouveau at South Kensington,’ an article
published in 1901 in the Architectural Review, dubbed the
style a ‘fantastic malady.’ Interviewed in a Magazine of Art
article in 1904, architect Charles Voysey identified Art
Nouveau with ‘a debauch of sensuous feeling,’ calling the
style ‘distinctly unhealthy and revolting.’ By 1930 the
American historian Lewis Mumford recalled Art Nouveau as
dominated by a ‘meaningless stylistic exuberance.’ When
John Betjeman surveyed the style in the same year he
admitted that it had produced ‘many a hideous little side
table, many a sickly front door.’”)

Mounting evidence suggested that “deviant” sexuality
served as a lens for evaluating the morality of art genres
Yvette Greslé, Strategies of veiling same-sex desire and its public
consumption: Aubrey Beardsley's illustration of Oscar Wilde’s 1894
Salome, 70 DE ARTE 22, 34 (2004) (emphasis added):
 
“‘In Wilde’s trials in 1895, his perceived position as both spokesperson
for art and example of sexual deviant resulted in a remarkable elision in
the public domain of art and sexuality and thus in the creation of a new
category of aestheticism . . . as his works were given equal time with his
sexual practices during the trials, aestheticism came to represent a
distinct and private realm of art and sexuality.’ [Regenia Garnier]
 
Wilde’s inversion of Victorian moral values and the perceived
purposelessness of his aesthetic of ‘art for art’s sake’ was equated with
the perceived immorality and assumed purposelessness of his same-sex
practices.”

Historical work in social psychology supported
the notion that U.S. federal judges (all male)
necessarily took note of these developments
Ed Cohen, The Double Lives of Man: Narration and
Identification in Late Nineteenth-Century Representations
of Ec-centric Masculinities, in SALLY LEDGER & SCOTT
MCCRACKEN, EDS., CULTURAL POLITICS AT THE FIN DE
SIÈCLE 85, 91 (Cambridge 1995):
“As the nineteenth century articulations of class and gender
increasingly sought to reproduce normative . . . masculinity
by figuring it as that which was antithetical to and
necessarily exclusive of sexual desires for other men, they
made this exclusionary criteria the (psychological) basis for
possessing appropriate forms of male subjectivity.”

American (male) judges (cont’d)
GEORGE CHAUNCEY, GAY NEW YORK: GENDER, URBAN
CULTURE, AND THE MAKING OF THE GAY MALE WORLD,
1890-1940, 100, 44 n.29 (1994) (emphasis added):
“Even as queer men began to define their difference from
other men on the basis of their homosexuality, ‘normal’ men
began to define their difference from queers on the basis of
their renunciation of any sentiments or behavior that might
be marked as homosexual . . . .
A sympathetic and unusually well informed doctor writing
in 1918 confirmed the validity of such concerns, noting that
in respectable society, ‘the accusation of perversity
[homosexuality] . . . means ruin.’”

Thus, the state’s power was deployed to police
normative sexuality through various means
Ruth Robbins, ‘A Very Curious Construction’: Masculinity and the
Poetry of A. E. Housman and Oscar Wilde, in SALLY LEDGER &
SCOTT MCCRACKEN, EDS., CULTURAL POLITICS AT THE FIN DE
SIÈCLE 137, 138 (1995) (emphasis added):
“The fear of an ending aroused by the term fin de siècle is
intimately related to notions of multiplicity: above all the fear that
the anarchy of multiple interpretations will replace the safety of
one view of the world. The events of 1895 were of crucial
importance here. Wilde’s downfall dramatized the conflict
between those who were prepared to live at the margins, to live
simultaneously several different versions of life, and those who
wished to use the full ideological weight of church and state to
enforce nineteenth-century sexual norms.”

An overview of the diverse sources used in
this project (my “progressive IP toolbox”)
1.  Various preexisting and newly created materials
specifically on U.S. design-patent law from its
inception to present
2.  Anthropological scholarship
3.  Semiotic theory
4.  Visual- and material-culture scholarship
5.  Other scholars’ historical analysis
6.  Academic, popular, and judicial commentary
7.  Cognitive-science research and application

I am in the process of compiling and interpreting
(1) various judicial, legislative, and administrative
sources and statistics on U.S. design patents  
—  Origins of and rhetoric surrounding U.S. design patent law
—  Shifting demographics on the federal judiciary, and the
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characteristics of the judges who wrote key decisions
Statistics on issuance of design patents (and utility patents)
Statistics on litigation over design patents (and utility
patents)—both relative frequency and outcomes
Judges’ doctrinal innovations in design-patent law
Judicial discussion of relevant precedent on design patents
Evolving methods of describing the subject matter at issue
Treatises from the early 1900s on U.S. design-patent law
Dates and frequency of lobbying efforts to “fix” design patents
Legislative responses (if any), and language from floor debates

To lay a theoretical foundation,
I invoke (2) anthropological scholarship
MARY DOUGLAS, PURITY AND DANGER 124 (1966, Routledge
2002) (emphasis added):
“Certainly people carry round with them a consciousness of
social structure. They curb their actions in accordance with
the symmetries and hierarchies they see therein, and strive
continually to impress their view of the relevant bit of
structure on other actors in the scene . . . . There are no
items of clothing or of food or of other practical use which we
do not seize upon as theatrical props to dramatise the way
we want to present our roles and the scene we are playing
in. Everything we do is significant, nothing is without its
conscious symbolic load. Moreover, nothing is lost on the
audience.”

To lay a theoretical foundation,
I invoke (2) anthropological scholarship
LAWRENCE ROSEN, LAW AS CULTURE: AN INVITATION 7 (2006):
“In each instance, law is so inextricably entwined in culture
that, for all its specialized capabilities, it may, indeed, best
be seen not simply as a mechanism for attending to disputes
or enforcing decisions, not solely as articulated rules or as
evidence of differential power, and not even as the reification
of personal values or superordinate beliefs, but as a
framework for ordered relationships, an orderliness that is
itself dependent on its attachment to all the other realms of
its adherents’ lives.”) (Emphasis added.)

To further lay a theoretical foundation,
I invoke (3) semiotic theory
JEAN BAUDRILLARD, THE SYSTEM OF OBJECTS 64 (Verso ed. 2005)
(emphasis added):
“The real dimension [that objects] occupy is captive to the moral
dimension which it is their job to signify . . . . Inasmuch as forms
are relative to one another, and continually refer to other,
homologous forms, they present the aspect of a finished discourse
—the optimal realization of an essence of man and an essence of
the world. The discourse is never innocent, however: the
articulation of forms among themselves always conceals another,
indirect discourse . . . Systematic technicity [in material culture]
calls forth systematic cultural connotation.” See also id. at 61
(“[t]he way objects are used in everyday life [can imply] an almost
authoritarian set of assumptions about the world.”)

To further lay a theoretical foundation,
I invoke (3) semiotic theory
ROLAND BARTHES, IMAGE – MUSIC – TEXT 31 (1977):
“[T]here is no perception without immediate categorization . . . .
[Visual] connotation, like every well-structured signification, is an
institutional activity; in relation to society overall, its function is
to integrate man, to reassure him. Every code is at once arbitrary
and rational; recourse to a code is thus always an opportunity for
man to prove himself, to test himself through a reason and a
liberty. [We can] take stock directly of the ideological contents of
our age; by trying to reconstitute in its specific structure the code
of connotation of a mode of communication [and] may hope to find,
in [its] very subtlety, the forms our society uses to ensure its peace
of mind and to grasp thereby the magnitude, the detours, and the
underlying function of that activity.” (Emphasis added.)

To support my argument, I rely on
(4a) the work of visual-culture scholars
SUSAN B. KAISER, FASHION AND CULTURAL STUDIES 153 (2012)
(emphasis added):
“Popular media discourses [in Anglo-American culture] cast people
who were labeled homosexual into the role of sexual deviant . . . .
The British press praised Wilde’s guilty verdict for acts that
‘attack all the wholesome, manly, simple ideals of English life and
set up false gods of decadent culture.’ [Colin Spencer.] The Wilde
trials received quite a bit of publicity in the United States, as well,
and public fears about homosexuality intensified . . . . The image
of Wilde’s velvet coats, knee breeches, silk stockings, long cape,
and flowing ties became symbolic of how homosexuality was
supposed to look. Effeminate, homosexual images such as these
were to continue generating anxiety well into the [20th century.]”

To support my argument, I rely on
(4b) the work of material-culture scholars
THOMAS J. SCHLERETH, VICTORIAN AMERICA: TRANSFORMATIONS IN
EVERYDAY LIFE, 1876-1915, 122 (1991):
“Men and women knew where to sit, since parlor furniture was gender
distinctive. Gentlemen’s chairs were thronelike, higher than lady’s
chairs and with arms. Ladies chairs lacked arms (in part to
accommodate their full skirts) and were designed to reinforce the era’s
postural requirements for women—to sit upright, away from the chair
back, with one’s hands folded in one’s lap.”

See also BAUDRILLARD, supra at slide 19 (“[t]he style of furniture
changes as the individual’s relationship to family and society change.”)

To support my argument, I rely on
(5) other scholars’ historical analysis
Ruth Robbins, ‘A Very Curious Construction’: Masculinity and
the Poetry of A. E. Housman and Oscar Wilde, in SALLY
LEDGER & SCOTT MCCRACKEN, EDS., CULTURAL POLITICS AT
THE FIN DE SIÈCLE 137, 137 (Cambridge 1995) (“for Wilde, ‘all
art is essentially useless’” except as art – and based on the
mores of the time, “an effeminate use of language would be
one which preferred the phatic to the functional,” as did the
flowery letter from Wilde to Douglas that featured
prominently in Wilde’s 1895 trial).

See also id. at 143 (“The newspapers establish[ed] a homology
between textual interpretation and characterological
assessment.”) (quoting ED COHEN, TALK ON THE WILDE SIDE
152 (1993)).

To support my argument, I rely on
(5) other scholars’ historical analysis
Laura Doan & Chris Waters, Introduction to Part II,
Homosexualities, in LUCY BLAND & LAURA DOAN, EDS., SEXOLOGY
UNCENSORED: THE DOCUMENTS OF SEXUAL SCIENCE 41, 41-42
(1998) (emphasis added):
“The early work of sexologists gradually began to familiarize the
European and North American public with the existence of a new
species of being variously labeled the Urning, Uranian,
intermediate type, invert or homosexual . . . . In Britain, the
Criminal Law Amendment Act of 1883 included the notorious
Labouchère Amendment, which criminalized so-called acts of
‘gross indecency’ between men, though no law was ever passed
against lesbianism. By the time the sensational trials of Oscar
Wilde took place in 1895, male homosexuality was extensively
debated, and . . . subject[ed] to intensive scrutiny.”

To support my argument, I rely on
(5) other scholars’ historical analysis
Yvette Greslé, Strategies of veiling same-sex desire and its public
consumption: Aubrey Beardsley’s illustration of Oscar Wilde’s
1894 Salome, 70 DE ARTE 22, 35 (2004) (emphasis added):
“Wilde’s trials took place at a particularly significant moment for
constructs of male same-sex identity . . . . The canon was
heterosexual reproductive intercourse constituted as ‘normal’ and
‘natural’ and validated because of its procreative function. Within
this canon a binary was established within the hegemonic
infrastructure which constructed men as the superior sex
intellectually, morally, socially, politically and physically. In the
last two decades of the nineteenth century the emergence of the
categories ‘New Woman’ and ‘homosexual’ explicitly threatened to
disrupt the cohesiveness of this binary.”

To support my argument, I rely on
(5) other scholars’ historical analysis
ALAN SINFIELD, THE WILDE CENTURY: EFFEMINACY, OSCAR
WILDE, AND THE QUEER MOMENT 154-55 (1994) (explaining that
“there is no reason to expect . . . a comparable development of
the queer model . . . in non-Anglo-Saxon cultures,” but
highlighting evidence that the Wildean archetype of the male
“queer” was heavily influential in Australia and the U.S. as well
as England)

See also ROY MORRIS JR., DECLARING HIS GENIUS: OSCAR WILDE
IN NORTH AMERICA (2013) (on Wilde’s 1000-lecture tour of, and
fame in, the United States)

 

I also examine (6a) academic and popular
commentary from the relevant time period
FRANCES POWER COBBE, CRIMINALS, IDIOTS, WOMEN, & MINORS
113 (1869) (emphasis modified):
“I can affirm from my own experience, as well, I believe, as that of
all who have had much to do with the poor of great cities, there are
among them at least as many good women as bad—as many who
are sober, honest, chaste, and industrious, as are the contrary.”
J.C. Flügel, The Great Masculine Renunciation and Its Causes, in
THE PSYCHOLOGY OF CLOTHES (1930) (“It is perhaps no mere
chance that a period of unexampled scientific progress should have
followed the abandonment of ornamental clothing on the part of
men at the beginning of the last century.”) (Emphasis added.)

(6a) Academic/popular commentary (cont’d)
THORSTEIN VEBLEN, THE THEORY OF THE LEISURE CLASS 110, 112
(1899) (emphasis added) (“It grates painfully on our nerves the
necessity of any well-bred women’s earning a livelihood by useful work.
It is not ‘woman’s sphere.’ Her sphere is within the household, which
she should ‘beautify,’ and of which she should be the chief ornament.”)
Georg Simmel, Fashion, in GEORG SIMMEL: ON INDIVIDUALITY AND
SOCIAL FORMS 310-11 (1908, rev. ed. 1971) (emphasis added) (“In a
certain sense fashion gives woman a compensation for her lack of
position in a class based on a calling or profession . . . . The fact that
the demi-monde is so frequently a pioneer in matters of fashion is due
to its peculiarly uprooted form of life. The pariah existence to which
society condemns the demi-monde produces an open or latent hatred
against [social rules and law, which takes] aesthetic expression in the
striving for ever new forms of appearance.”)

I have found it productive to examine (6b)
judicial commentary from “other” areas/eras
City of Chicago v. Wilson, 389 N.E.2d 522, 533, 534 (Ill. 1978):
“In this court, the city has asserted four reasons for the total
ban against cross-dressing in public: (1) to protect citizens
from being misled or defrauded; (2) to aid in the description
and detection of criminals; (3) to prevent crimes in washrooms;
and (4) to prevent inherently antisocial conduct which is
contrary to the accepted norms of our society . . . . The city’s
fourth reason . . . for prohibiting the defendants’ choice of
public dress is apparently directed at protecting the public
morals . . . . It is presumably believed that cross-dressing in
public is offensive to the general public’s aesthetic preference.”
(Emphasis added.)
 

To show that the social dynamics at work
necessarily mapped onto design patents, I invoke
(7a) the work of cognitive scientists
GEORGE LAKOFF & MARK JOHNSON, METAPHORS WE LIVE BY
246, 243 (rev. ed. 2003) (emphasis added):
“Do we systematically use inference patterns from one
conceptual domain to reason about another conceptual
domain? The empirically established answer is ‘yes.’ We call
that phenomenon conceptual metaphor, and we call the
systematic correspondence across such domains metaphorical
mappings. . . .

How we think metaphorically matters. It can determine
questions of war and peace, economic policy, and legal
decisions, as well as the mundane choices of everyday life.”

I also rely on (7b) other legal scholars’
synthesis/use of cognitive-science research
STEVEN L. WINTER, A CLEARING IN THE FOREST: LIFE, LAW,
AND REASON 4, 5, 6 (2001) (“It is the essence of our concept of
law that it operates as an external constraint, much like the
impenetrable vegetation of [a] forest. Yet this very conception
already places law in the domain of metaphor and
imagination, which is to say in the internal realm of the
human mind . . . . [But it] is now possible to describe the
structures of imagination. These mechanisms [include]
mental operations such as basic-level categorization,
conceptual metaphor, metonymy, image-schemas, idealized
cognitive models, and radical categories . . . . Together, they
transform our understanding of reasoning and
categorization . . . . Poetic and judicial creativity of the sort
exhibit by the psalmist or by Justice Holmes is unveiled as of
a piece with the day-to-day work of human imagination.”)

Questions or comments?  
Please feel free to e-mail
me at cec10@nyu.edu