Washington University Law Review VOLUME 84 NUMBER 3 2006 SEMIOTIC DISOBEDIENCE ∗ SONIA K. KATYAL “[T]he nation and the world are in dire need of creative extremists.”1 —Dr. Martin Luther King Jr., Letter from Birmingham Jail INTRODUCTION Nearly twenty years ago, a prominent media studies professor, John Fiske, coined the term “semiotic democracy” to describe a world where audiences freely and widely engage in the use of cultural symbols in response to the forces of media.2 A semiotic democracy enables the audience, to a varying degree, to “resist,” “subvert,” and “recode” certain ∗ Associate Professor, Fordham University School of Law. This Article was awarded an Honorable Mention in the 2006 Scholarly Papers Competition, American Association of Law Schools. For helpful comments and conversation at various stages in this project, the author thanks Amy Adler, Ann Bartow, Barton Beebe, Christine Bohannan, Devon Carbado, Julie Cohen, Elizabeth Cooper, Reza Dibadj, Matthew Diller, Graeme Dinwoodie, Christine Farley, John Farmer, Robin Feldman, Llew Gibbons, Abner Greene, Laura Heymann, Hugh Hansen, Justin Hughes, Neal Katyal, Sudhir Krishnaswamy, Roberta Kwall, Michael Landau, Lawrence Lessig, Lawrence Liang, Michael Madison, Eduardo Peñalver, Achal Prabhala, Margaret Jane Radin, Lisa Ramsey, Joel Reidenberg, Darren Rosenblum, Rebecca Tushnet, Gerald Torres, Siva Vaidhyanathan, Fred von Lohmann, Rob Walker, the Intellectual Property Scholars Conference at Cardozo Law School (August 2005), the participants of the Intellectual Property Seminar at Boalt Law School (Fall 2005), and the Alternative Law Forum in Bangalore, India (December 2005). The author wishes to thank Susan Freiwald, John Adler, and the faculty and administration at University of San Francisco Law School for being such generous hosts during the fall of 2006, as well as Pamela Samuelson and Boalt Law School for welcoming me as a visiting scholar during that time. Genevieve Blake provided extraordinarily helpful research assistance, as did Alan Avorgbedor, Ru Bhatt, Rachael Braswell, Natsuko Fujiu, Ethan Notkin, Robert Pierson, Allison Schilling, and Mary Sewell. I particularly thank Esther Lucero for drawing the work of AIM (American Indian Movement) and other examples of semiotic disobedience to my attention. 1. Martin Luther King, Jr., Letter from Birmingham Jail (Apr. 16, 1963), in WHY WE CAN’T WAIT 77, 92 (1964). 2. JOHN FISKE, TELEVISION CULTURE 239 (Routledge 1999) (1987). 489 Washington University Open Scholarship p489 Katyal book Pages.doc4/19/2007 490 WASHINGTON UNIVERSITY LAW REVIEW [VOL. 84:489 cultural symbols to express meanings that are different from the ones intended by their creators, thereby empowering consumers, rather than producers.3 At the time, Fiske’s concept was revolutionary; it promised a complete reversal of the monopolistic hierarchy of the author and the presumed passivity of the audience in receiving meaning. The term “semiotic democracy” offered an interesting juxtaposition of ideals— political liberty, freedom of expression, and creation—alongside a basic disruption of the common assumptions that inhere in authorial control. Although Fiske originally referenced the audience’s power in viewing and interpreting television narratives, today, his vision of semiotic democracy has become perhaps the single most important ideal cited by scholars who imagine a utopian relationship between law, technology, and democratic culture.4 Within a semiotic democracy, individuals can become both producers and creators, able to reinscribe and recode existing representations, thereby expanding the rich cultural fabric of our nation. Instead of relegating the audience to passive spectatorship, a semiotic democracy would empower individuals to add to the rich and expansive cultural fabric of a true public domain, where everyone participates equally in the ongoing process of cultural production.5 Today, the term has become as ubiquitous as it is utopian, permeating commentaries on the relationship between intellectual property and freedom of expression.6 Typically, scholars who embrace this ideal note that the grand and sweeping vision offered by semiotic democracy profoundly conflicts with the central precepts of exclusive ownership, which has traditionally enabled authors to direct and dictate a wide degree of control over an original image or text.7 Lawrence Lessig, for example, 3. Michael Madow, Private Ownership of Public Image: Popular Culture and Publicity Rights, 81 CAL. L. REV. 125, 139 (1993). 4. See Madow, supra note 3, at 143–48. 5. See generally WILLIAM W. FISHER III, PROMISES TO KEEP: TECHNOLOGY, LAW, AND THE FUTURE OF ENTERTAINMENT (2004) (explaining the problems of copyright protection in the context of new technology) [hereinafter Fisher, PROMISES]; see also William W. Fisher III, Property and Contract on the Internet, 73 CHI.-KENT L. REV. 1203, 1217–18 (1998) [hereinafter Fisher, Property]. 6. See, e.g., Yochai Benkler, Freedom in the Commons: Towards a Political Economy of Information, 52 DUKE L.J. 1245, 1265 (2003); Anupam Chander, Whose Republic?, 69 U. CHI. L. REV. 1479, 1491 (2002); Giselle Fahimian, How the IP Guerrillas Won: ®TMark, Adbusters, Negativland, and the “Bullying Back” of Creative Freedom and Social Commentary, 2004 STAN. TECH. L. REV. 1, ¶ 1-2 (2004), available at http://stlr.stanford.edu/STLR/Articles/04_STLR_1/ article_pdf.pdf; Madow, supra note 3, at 145–46; Rebecca Tushnet, Copy This Essay: How Fair Use Doctrine Harms Free Speech and How Copying Serves It, 114 YALE L.J. 535, 539 n.7 and accompanying text (2004). 7. See Anupam Chander & Madhavi Sunder, The Romance of the Public Domain, 92 CAL. L. REV. 1331, 1334–35 (2004); Madow, supra note 3, at 145–47. https://openscholarship.wustl.edu/law_lawreview/vol84/iss3/1 p489 Katyal book Pages.doc4/19/2007 2006] SEMIOTIC DISOBEDIENCE 491 has claimed in a recent book that a semiotic democracy must be nurtured, protected, and secluded from the authorial control of intellectual property ownership.8 Terry Fisher, echoing this view, has explained semiotic democracy as a corollary of political democracy: if “political democracy” describes a system in which individual citizens are able to participate in the exercise of political power, then “semiotic democracy” describes a system in which individual citizens are able to participate in the creation of cultural meaning.9 Although Fiske’s vision is both brilliant and indelibly important, it is also somewhat incomplete. In this Article, I seek to introduce another framework to supplement Fiske’s important metaphor: the phenomenon of “semiotic disobedience.” Three contemporary cultural moments in the world—one corporate, one academic, and one artistic—call for a new understanding of the limitations and possibilities of semiotic democracy and underline the need for a supplementary framework. Now more than ever, the continued production of popular culture rests on the continued presence of corporate sponsorship in many aspects of both public and private life. The marketplace of ideas has rapidly morphed into a vehicle for corporate speech. As public spaces have become converted into vehicles for corporate advertising—ads painted onto sidewalks and into buildings, schools, and other public spaces10—product placement has soared to new heights of power and subtlety.11 And throughout, the law has generously offered near-sovereign protection to such symbolism through the ever-expanding vehicle of intellectual property protection. Principles of trademark and copyright ownership have allowed corporations to consecrate their symbols and images, allowing for a particularly robust form of incontestability. Equations between real 8. See generally LAWRENCE LESSIG, FREE CULTURE: HOW BIG MEDIA USES TECHNOLOGY AND THE LAW TO LOCK DOWN CULTURE AND CONTROL CREATIVITY (2004). 9. Scott Rosenberg’s Links & Comment, http://blogs.salon.com/0000014/2003/07/08.html (July 8, 2003, 14:58 PST) (describing Terry Fisher’s talk at the Stanford/Harvard ILaw Seminar). 10. See NAOMI KLEIN, NO LOGO: TAKING AIM AT THE BRAND BULLIES 280 (1999); HERBERT I. SCHILLER, CULTURE, INC.: THE CORPORATE TAKEOVER OF PUBLIC EXPRESSION (1989) (discussing how private entities have gained control over formerly public physical spaces); ERIC SCHLOSSER, FAST FOOD NATION: THE DARK SIDE OF THE ALL-AMERICAN MEAL 51–57 (2001) (discussing how fast- food chains have successfully targeted public schools with marketing efforts since the 1990s); Pedro Domingos, Mining Social Networks for Viral Marketing, IEEE INTELLIGENT SYS., Jan.–Feb. 2005, at 80, 80–82, available at http://www.cs.washington.edu/homes/pedrod/papers/iis04.pdf (discussing the use of social networks on the Internet as a means for productive viral marketing); Ellen P. Goodman, Stealth Marketing and Editorial Integrity, 85 TEX. L. REV. (forthcoming 2007) (discussing rise of covert advertising in mass media); Eyal Press & Jennifer Washburn, The Kept University, THE ATLANTIC MONTHLY, Mar. 2000, at 39, available at http://www.aaas.org/spp/rd/ch26.pdf (discussing corporate control of university research). 11. See KERRY SEGRAVE, PRODUCT PLACEMENT IN HOLLYWOOD FILMS: A HISTORY (2004). Washington University Open Scholarship p489 Katyal book Pages.doc4/19/2007 492 WASHINGTON UNIVERSITY LAW REVIEW [VOL. 84:489 property and intellectual property are ubiquitous.12 Underlying these themes is a powerful linkage between intellectual and tangible property: as one expands, so does the other. In addition to the corporate moment, a second cultural