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Talk Derby to Me: Emergent Intellectual Property Norms Governing Roller Derby Pseudonyms

April 23, 2011 Comments off

Talk Derby to Me: Emergent Intellectual Property Norms Governing Roller Derby Pseudonyms
Source: Texas Law Review, Forthcoming (via SSRN)

Some groups use endemic social norms rather than formal law to regulate their intellectual property (IP). This qualitative empirical study extends and critiques existing work on this topic by examining how roller derby skaters guarantee exclusive use of the pseudonyms under which they compete. Roller derby names are a central part of this countercultural, all-girl sport, adding to its distinctive combination of punk and camp. Skaters have developed an elaborate rule structure, registration system, and governance regime to protect the uniqueness of their pseudonyms. The emergence of this extra-legal governance scheme despite the ready availability of IP theories (e.g., trademark, rights of publicity) to protect derby names challenges a central tenet of the prevailing literature that such norms emerge only where IP law has no subject-matter application. This analysis of derby names shows that IP norms emerge independently of law’s substantive (un)availability, so long as the relevant group is close-knit and the norms are welfare-maximizing. These groups are especially likely to craft formal regulation and registration schemes to buttress informal norms where the relevant community is identity-constitutive, and where the intangible goods arise from nonmarket production. In addition to this critique of existing explanations for IP norm emergence, this study suggests a counter-theory for the emergence of user-generated IP governance systems, casts (further) doubt on the coherence of the prevailing neoclassical economic assumptions underlying IP law, and calls into question what it means for rules to be law.

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