THE LAW REVIEW OF THE FRANKLIN PIERCE CENTER FOR INTELLECTUAL PROPERTY VOLUME 61 — ISSUE 3 EDITORIAL BOARD EDITOR-IN-CHIEF MEREDITH E. FOOR NOTES & COMMENTS EDITOR MANAGING EDITORS LEAD ARTICLES EDITOR NICHOLAS TELLA KURT HOPPMANN RYAN RIEKER AUSTIN LORCH SYMPOSIUM & E-MEDIA EDITOR HALEY BREEDLOVE SENIOR EDITORS NANCY BRAMAN MASON CARR HALEY GOECKEL CHRISTOPHER GLUECK ASSOCIATE EDITORS NICOLE DEMAS J. MITCHELL LOWE KATARINA OVERBERG JI HYE HWANG JUSTIN MADER YILING SUN PAUL KLINE LOGAN MURR ELEANOR WALKER CAMERON LINDSAY KAVYASRI NAGUMOTU FACULTY ADVISORS JON CAVICCHI & RYAN VACCA UNIVERSITY OF NEW HAMPSHIRE FRANKLIN PIERCE SCHOOL OF LAW BUSINESS MANAGER LAURI CONNOLLY UNIVERSITY OF NEW HAMPSHIRE FRANKLIN PIERCE SCHOOL OF LAW IDEA®: The Law Review of the Franklin Pierce Center for Intellectual Property (ISSN 0019-1272) is published three times a year by the students of the University of New Hampshire Franklin Pierce School of Law (UNH Law), and provides practical articles relating to patent, copyright, trademark, trade secret, unfair competition, and general intellectual property law issues from around the world. Subscription information is available in the back of the Law Review. Our mission is to be recognized worldwide as the premier intellectual property publication providing practical articles that timely address new, controversial, and potential developments in intellectual property law and related fields. The opinions of the authors are not necessarily those of the Board of Editors, Editorial Advisory Board, Faculty Advisor(s), or UNH Law. IDEA®: The Law Review of the Franklin Pierce Center for Intellectual Property is indexed in Current Law Index, Legal Resources Index, Index to Legal Periodicals, and Legal Contents and is available online on EBSCOhost®, HeinOnline®, WESTLAW®, LEXIS®, and at https://law.unh.edu/IDEA. 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Where UNH Law holds copyright, it grants permission for copies of articles to be made for classroom use, provided that copies are distributed at or below cost; the author and IDEA: The Law Review of the Franklin Pierce Center for Intellectual Property are identified; proper notice of copyright is affixed to each copy; and IDEA: The Law Review of the Franklin Pierce Center for Intellectual Property is notified of the use. Cite as: 61 IDEA __ (2021). Notwithstanding anything to the contrary, IDEA should always be cited in the above-noted manner. SUBSCRIBER RENEWAL REQUIREMENT Subscriptions of IDEA run on a calendar year. Payment is due before the shipment of issue one of the next volume. If you have not paid for Volume 62 directly or through your agent, your subscription will cease with this issue unless payment is received by January 31, 2022. Thank you for being a valued subscriber. TABLE OF CONTENTS VOLUME 61 — ISSUE 3 ARTICLES: WHO ARE YOU WEARING? AVATARS, BLACKFACE AND COMMODIFICATION OF THE OTHER WILLAJEANNE F. MCLEAN……...............455 OPEN-ISH GOVERNMENT LAWS AND THE DISPARATE RACIAL IMPACT OF CRIMINAL JUSTICE TECHNOLOGIES BEN WINTERS ……… . .507 THE BELATED AWAKENING OF THE PUBLIC SPHERE TO RACIST BRANDING AND RACIST STEREOTYPES IN TRADEMARKS FADY J.G. AOUN . …545 TEMPORALITY IN A TIME OF TAM, OR TOWARDS A RACIAL CHRONOPOLITICS OF INTELLECTUAL PROPERTY LAW ANJALI VATS.. …673 A NOTE FROM THE EDITORS The articles contained within this publication are authored by distinguished individuals who presented at IDEA’s Fall 2020 Symposium on Race & Intellectual Property. Please be advised that some of the articles contained within this publication include highly offensive images and derogatory language. While we understand that these may cause serious offense, our editorial team and authors have elected to include them for the purposes of providing a more accurate representation and preserving the academic record of the subject matter explored within. 455 WHO ARE YOU WEARING? AVATARS, BLACKFACE AND COMMODIFICATION OF THE OTHER WILLAJEANNE F. MCLEAN* ABSTRACT The question “Who are you wearing?” generally elicits the name of the haute couture designer, particularly when asked during the awards season. This Article, however, uses the question to interrogate the seemingly pervasive (mis)uses of bodies of color, whether in real or virtual world spaces. As explained by bell hooks, “[w]hen race and ethnicity become commodified as resources for pleasure, the culture of specific groups, as well as the bodies of individuals, can be seen as constituting an alternative playground where members of dominating races, genders, sexual practices affirm their power-over in intimate relations with the Other.” Using examples taken from various facets of American life, the Article also touches upon how the use of technology and * Distinguished Professor of Law, University of Connecticut. An earlier version of this article was presented at the 4th National People of Color Legal Scholarship Conference at American University Washington College of Law in March, 2019. The ideas in this article were greatly enhanced by comments from my co-panelists and audience. My thanks to my colleagues, Professors Tom Morawetz and Steven Wilf, who graciously gave of their time to discuss with me my ideas or to read drafts, to Anne Rajotte for her eagle eye in finding and correcting Bluebook errors and the other reference librarians at UCONN Law who expedited my requests even in the midst of the pandemic. I also thank Dr. Kishonna L. Gray for providing me with some of her articles and sources on video gaming. My thanks also to the editors of IDEA. Any errors are, of course, all mine. Volume 61 – Number 3 456 IDEA – The Law Review of the Franklin Pierce Center for Intellectual Property intellectual property, in particular trademarks, has helped to maintain the status quo and further the perception of “otherness.” However, in this pivotal social movement, consumers are challenging various corporate entities to abandon or to avoid practices of cultural appropriation and commodification. To achieve this goal, it is paramount that there be representation at all levels, and that any decision making include collaboration with constituent, relevant groups to determine the impact, intent, and significance of a particular social practice. Abstract........................................................................... 455 I. Introduction............................................................. 457 II. Avatars .................................................................... 458 III. Blackface................................................................. 463 A. Digital Blackface ................................................ 467 B. Video Games....................................................... 469 C. Commodification and Appropriation of the Other …………………………………………………..473 D. Blackface as Fashion........................................... 478 IV. Questions Presented ................................................ 485 V. Conclusions............................................................. 500 VI. Appendix................................................................. 505 61 IDEA 455 (2021) Who Are You Wearing? Avatars, Blackface and Commodification of the Other 457 I. INTRODUCTION Who you wearing? Sean John, Calvin Klein Donna Karan’s fashion line Valentino, YSL Ferragamo and Chanel Holsten, Gucci, Figla, Rucci Don’t forget my Pucci Fendi and Armani God, I miss Gianni. .1 Who are you wearing? That question is asked frequently on the red carpet for the Golden Globes, the Oscars, and the Emmys. The question was first asked by Joan Rivers in 1994,2 and generally elicits the name of the designer of the gown or the purveyor of the jewels worn by the actresses as they arrive at the awards venue.3 However, this paper seeks to upend that question by applying it to the use of avatars, blackface and the bodily appropriation of others to interrogate the use of technology and intellectual property in maintaining the power of dominant, read white, culture. Technology has brought us the ability not only to be connected 24/7, but also the ability to play video games, for example, at any moment of time and anywhere. Supposedly the ability to transport oneself into another world and transform oneself provides respite from an angst-ridden real 1 Jimmy James, Fashionista (Made Records 2006). 2 See generally Erin Mayer, What She Meant to the Red Carpet, BUSTLE (Sept. 4, 2014), https://www.bustle.com/articles/38636-what-joan- rivers-meant-to-the-red-carpet-she-was-the-first-person-to-not [https://perma.cc/5LRM-MNUD]. 3 This interaction between reporters and celebrities has been criticized as shallow, and there have been efforts to get reporters to ask other questions. See, e.g., Jennifer L. Schmidt, Blurred Lines: Federal Trade Commission’s Differential Responses to Online Advertising and Face to Face Marketing, 19 J. HIGH TECH. L. 442 (2019). Volume 61 – Number 3 458 IDEA – The Law Review of the Franklin Pierce Center for Intellectual Property world, but that is not necessarily