A HISTORY OF INTELLECTUAL PROPERTY IN 50 OBJECTS Edited by CLAUDY OP DEN KAMP and DAN HUNTER 10 Corset Kara W. Swanson
wo centuries ago, women and girls masculinity of technology, invention, and Tthroughout the United States reached inventors by the legal definition of “in- for one piece of technology first thing in vention.” To this day, an innovative, col- the morning, and kept it with them all lapsible playpen made by a carpenter or day long—the corset. Although men had in a factory can be patent-protected; a worn corsets in earlier periods, the corset’s baby quilt made in a novel design, stitched purpose by the mid-19th century was to lovingly at home, cannot. In the golden create the public shape of the female body. age of invention, the famous inventors It emphasized (or depending on the whims were men, like Samuel Morse, Thomas of fashion, deemphasized), bust, waist, and Edison, and Alexander Graham Bell, all hips in ways intended to accentuate differ- patent-holders. By one count, women ob- ences between male and female. Today, the tained fewer than 100 patents in the United corset still fascinates, an emblem of fem- States before 1860, and while the number ininity that appears on fashion runways, of female patentees increased significantly the concert stage (famously worn by pop after the Civil War (1861–1865), less than star Madonna), and in blockbuster movies one percent of late 19th-century patents (The Rocky Horror Picture Show, Gone were granted to women. with the Wind). Less visible are the ways The corset, as an oh-so-feminine technol- the corset as an object of intellectual prop- ogy, challenged the association of technol erty has exposed the masculine assump- ogy, patents, and invention with masculinity. tions in our understanding of technology, During the late 19th century, the cor- patents, and law. set became a mass-produced, factory- When we think of technology, we think made consumer good, like plows, sewing of machines, not underwear. This under- machines, and horseless carriages. But the standing of technology is the product of purpose of this technology was to make the Industrial Revolution. The develop- its user feminine. Middle and upper class ment of factories separated mass-produced women wore corsets as part of their assigned technologies from home-made technolo- social role of ornament, adorning the home gies. As women’s work remained home- by their well-dressed presence. The corset based, “technology” became something not only created a pleasing body shape, but made, and better understood, by men. also produced specific behavior. The corset The results of that gendering have been influenced how its wearers walked, sat, profound, reflected in the gender gap in danced, and even breathed. Tight lacing Science, Technology, Engineering and could induce pallor, breathlessness, and a Mathematics (STEM) participation, and tendency to faint. The corset thus promoted the wage gap between men and women in a performance of delicate femininity that industrialized nations, as women’s work reinforced a common belief that females outside the home was less valued. were the weaker sex. Corsets were also Patent laws drafted and interpreted required wear for female prisoners and in the 19th century helped reinforce the worn by servants and factory girls. Social pressures that kept women of all classes riers, they earned almost one-quarter of corseted were intended to police female corset patents. Women lacked access to behavior in another way—to control female education, capital, business networks, and, sexuality. The corset “is an ever-present as married women, even the legal capacity monitor indirectly bidding its wearer to to own inventions and enter contracts to exercise self-restraint; it is evidence of a commercialize them. But they had first- well-disciplined mind and well-regulated hand experience wearing and washing feelings.” A corseted woman was unavail- corsets. Most learned sewing skills at home. able, and thus, chaste. Dressmaking was already a women’s trade. Attaining the perfect silhouette was As corsets became a booming business, neither comfortable nor simple. Corsets these experiences helped some women enter were marvels of engineering. Containing the market as inventors and entrepreneurs. as many as 50 separate pieces of cloth, Sarah Dake, in rural Eureka, Wisconsin, reinforced by stiffening stays, busks, and used the patent system to turn her knowl steels, and fastened with laces, eyelets, and edge of corsets into dollars, obtaining a pat- clasps, they could be made at home only ent and then finding 38 different licensees by the most ambitious amateur, and more to commercialize her invention. In New often were made in small workshops. As York City, Mina Sebille, owner of a corset industrial techniques came to the textile workshop, obtained a patent, and then used industry, the goal of weaving corsets on the same patent lawyer later employed by power looms became a sought-after com- Thomas Edison to represent her interests. mercial prize. As in other business sectors, Several Massachusetts women licensed corset makers turned to intellectual prop their patents to a Boston corset firm, while erty law, with patents protecting innova- another, Lavinia Foy, turned her corset tions and heavily advertised trademarks innovation into a long-lasting business. used to market these consumer goods. Based in New Haven, Connecticut, Foy’s A corset inventor was literally patenting company employed over two hundred an ideal female form—not in metal, like workers, and reportedly brought her an seamstress dummies, or in plastic, as in annual income of $25,000 in the 1870s, the later Barbie doll—but in a tool to when most workers earned less than $500 mold living flesh into a shape admired a year. Although she was in business with by men. During the corset’s heyday, in- her husband and later her son, Foy was ventors obtained hundreds of patents an- the inventor, obtaining at least 13 patents. nually. Their inventions claimed to make Each of these women used their ex- corsets stronger, less cumbersome, easier pertise in corsetry for economic gain. At to wash, or quicker to manufacture. Like the same time, the corsets these business other innovators, corset inventors licensed women wore marked them as feminine, their patents for royalty payments, and serving as a constant reminder of the lim- sued competitors for infringement. As a itations imposed by Victorian gender roles. patented technology, corsets were merely Those gender roles ultimately cost one type of the inventions pouring into the another female corset entrepreneur her US patent office in the 19th century. But patent. Frances Egbert earned royalties the corset stood out in two ways. First, as a from her deceased husband’s patent for technology well known to women, the cor- 15 years, suing numerous competitors set proved accessible to women as inventors for infringement. One competitor fought and entrepreneurs. Second, in the language back, claiming that the patent was invalid. of patent law, the corset’s utility (usefulness) Frances pursued her case all the way to was inextricably linked to its production the US Supreme Court in 1881. There, of femininity and control of female sexu- the femininity of the corset changed pat- ality. In these differences, the corset as an ent law. Despite the common assumption object of intellectual property challenged that technology—and thus law interpret- and exposed the gendered assumptions of ing technology—is rational, value-free, lawyers, judges, and the law itself. and gender-neutral, patent law proved Though women faced daunting bar- no different than any other area of law in reflecting society and culture. for a corset, was evidence of adultery. A Frances’ troubles stemmed from her man who was found to have talked about dual role. She was the patent owner and buying a corset for a woman was ruled a businesswoman, but she was also a key the father of her child. Frances’ testimony witness, testifying as the “intimate friend” about her corset indicated that she was sex- (and future wife) of Samuel Barnes at the ually available to Samuel, an intimacy that time of his invention. In 1855, neither Sam- eventually led to marriage, and underlay uel nor Frances were in the corset business. their mutual understanding that her corset Frances wore corsets, and she complained steels remained secret. to Samuel about her steels breaking. These The justices chose to ignore the impli- vertical pieces of metal were worn in pairs cations of Frances’ actions regarding her to keep the front of a corset rigid, and also corset, actions suggesting female sexual- served as anchors for fasteners that closed ity insufficiently restrained. Instead, they the corset. The strain of lacing the corset interpreted her actions as if she were the in back, however, could cause steels to give businessperson she later became, to whom way. Samuel crafted a set of reinforced corsets were manufactured goods bought steels and gave his prototype to Frances, and sold in bulk, rather than a personal who wore the pair, sewn into her corset, technology of self-presentation. In that for 11 years before Samuel filed his patent choice, they not only avoided acknowledg- application. Patent law, then and now, pro- ing a nonmarital sexual relationship, but vides that if an invention was in public use also refused to reward the female partner before its inventor seeks a patent, a patent in that relationship with an enforceable cannot be granted. Frances argued that her patent. The gendered meanings of Frances’ use was very private. The Supreme Court corset had long-term consequences for all decided otherwise, ruling her use a public inventors, as the Court broadened the legal use of the invention. meaning of public use. To 21st-century sensibilities, this ruling Frances was only one of many women seems odd. If steels sewn into one woman’s who challenged socially imposed limita- undergarments are in public use, it is hard tions on their behavior. Eventually, the to imagine what use is private. The justices, restrictive corset itself faded from popular- however, considered the transfer of the ity, defeated by the bicycle craze, flapper steels as if Frances and Samuel were two fashions, and new elastics that allowed more businessmen, contemplating a partnership. comfortable girdles and garters. Women They declared that since Samuel had failed still innovated, however, in what became to extract any promise of confidentiality known as “intimates,” echoing Frances’ from Frances, she was free to show others term. Seeking an undergarment that the steels or develop the invention commer- wouldn’t show under her dress, New York cially, making her a public user. Of course, City debutante Caresse Crosby invented an it probably never occurred to Samuel to ask early version of the modern bra out of two Frances, his “intimate friend” and later his handkerchiefs in 1910. As both inventor wife, to sign a confidentiality agreement. and wearer, Crosby patented her invention He would assume that Frances would not and sold the patent rights to male-founded be showing her corset, or its steels, to any- Warner Brothers Corset Company for the one but him. “munificent” sum of $1,500, allowing War- Samuel, Frances, and the justices ner Brothers to commercialize the latest in knew, as Victorians, the power of the cor- feminine technologies. ♦ set to contain female sexuality and signal respectable femininity. In both law and Further Reading society, removing a corset in the presence of a man, or even discussing it, as Frances C. Willet Cunnington and Phillis had with Samuel, was evidence of a sexual Cunnington (1992) The History of Underclothes. relationship. In a divorce case in that era, Mineola: Dover. (quoted above from p. 180) evidence that a woman had been in the same room as a man, fully clothed except Wendy Gamber (1995) “‘Reduced to Science’: Gender, Technology, and Power in the American Dressmaking Trade, 1860–1910,” Technology and Culture, 36(3), pp. 455–482.
B. Zorina Kahn (2000) “‘Not for Ornament’: Patenting Activity by Nineteenth-Century Women Inventors,” Journal of Interdisciplinary History, 31, pp. 159–195.
Clarence D. Long (1960) Wages and Earnings in the United States, 1860–1890. Princeton: Princeton University Press.
Anne L. MacDonald (1992) Feminine Ingenuity: Women and Invention in America. New York: Ballantine Books.
Deborah J. Merritt (1991) “Hypatia in the Patent Office: Women Inventors and the Law, 1865–1900,” American Journal of Legal History, 35, pp. 235–306.
Denise E. Pilato (2000) Retrieval of a Legacy: Nineteenth-Century American Women Inventors. Santa Barbara: Praeger.
Valerie Steele (2001) The Corset: A Cultural History. New Haven: Yale University Press.
Kara W. Swanson (2011) “Getting a Grip on the Corset: Gender, Sexuality and Patent Law,” Yale Journal of Law & Feminism, 23, pp. 57–115. A History of Intellectual Property in 50 Objects at Cambridge University Press