What Can Roller Derby Girls Teach Us About IP Law? (Answer: More Than You Think)

David Fagundes, Talk Derby to Me: Emergent Intellectual Property Norms Governing Roller Derby Pseudonyms (forthcoming Tex. L. Rev.), available at SSRN.

The orthodox justification for patent and copyright laws, at least in the United States, is utilitarian: that is, both sets of legal rules are premised on the theory that only by rewarding creators with special property rights can we ensure that creations get created.

Viewed in the abstract, who could argue otherwise?  Both technological innovations and artistic works are often difficult to create but easy to copy. Absent strong property rights, copyists will free ride on the efforts of creators. This, in turn, discourages investment in new inventions and creations. In short, copying stifles innovation – and therefore innovation requires legal intervention in the form of property rights.  Right?

Well . . . maybe. Recently, a number of economists and legal scholars have pointed out a number of instances in which significant acts of creativity occur over long periods of time but without, or with comparatively little, IP law. Back in 2005, Kal Raustiala and I wrote a paper about the fashion industry, which produces new apparel designs at a fevered pace with nearly no copyright protection. Jonathan Barnett and Scott Hemphill and Jeannie Suk offer somewhat different explanations for the fashion industry’s longstanding practice of innovating without IP.  The Hemphill/Suk paper argues that perhaps the fashion industry would be better off if we introduced some narrow copyright-like protection against identical or nearly identical copies, but all agree that the best innovation policy is to largely leave the fashion industry free to create the looser “inspired by” derivative works that constitute so much of the industry’s current output and whose existence would be threatened by the introduction of the standard rules of copyright law.

Nor is fashion the only creative community that innovates without IP.  In a study of French chefs, Emanuelle Fauchart and Eric von Hippel showed that innovation in fine cuisine occurs without IP protection for virtually all recipes.  Christopher Buccafusco bolstered this finding with a paper focusing on American chefs. Other academics have studied a variety of smaller communities where creators innovate without – or with little – formal IP.  Jacob Loshin has shown how magicians create new magic tricks without resort to IP law.  A qualitative empirical study I co-authored with Dotan Oliar describes how stand-up comedians protect their investment in new jokes and police joke thievery without the aid of formal IP law.  Comedians turn instead to a set of IP norms that they’ve formulated for themselves, and which they impose, collectively, on the community of stand-ups.

Taken together, the recent scholarship, of which the papers cited above are only a sample, is beginning to sketch out a picture of what many now refer to as “IP’s negative space.”  By this term we mean those creative endeavors which could be covered fully by IP law, but, for some reason (often as the result of a doctrinal quirk or historical accident) are not.  Studying IP’s negative space is important, because if we see creativity thriving without IP’s intervention, we should look more closely to understand the conditions that allow low-IP innovation within that particular creative community.  And once we understand how particular creative forms thrive in a low-IP environment, we might reasonably ask whether the same or similar dynamics might suffice to spark innovation in markets typically characterized by heavy reliance on IP.  This is not to say that the negative space scholarship provides a direct argument for stripping IP protections from music, or motion pictures, or pharmaceuticals.  But understanding the ways in which creativity thrives without IP will at least help us evaluate the next (inevitable) plea from some creative industry or another for more IP protection.  It may also help us to understand how to re-organize creative industries, like music, for which an IP-based response to piracy has not worked.

David Fagundes’ new paper contributes to the “negative space” scholarship.  His subject is an unlikely one: roller derby – an all-female amateur competition mixing sport with spectacle, and set to a punk music soundtrack.  Derby, which has roots as far back as the 1880s, is enjoying something of a present-day renaissance.  There are now many thousands of skaters around the U.S. and the world competing in more than 400 regional roller derby leagues.

Despite its recent growth, derby remains amateur and “alternative”, and its participants are determined (so far) to remain so.  The absence of commercial ambitions may lead one to think that property rights, including IP rights, are not relevant.  But that would be a mistake.  It turns out that derby girls (their preferred moniker) care a lot about a particular form of IP.  Derby girls want exclusive rights in their “skate names,” fanciful tags like Tara Armov, Soylent Mean, Paris Killton, Sparkle Plenty, Fighty Almighty, Tae Kwon Ho, Mila Minute, and Dread Pirate Robyn, that skaters adopt to identify themselves to their fans, sometimes to keep their derby participation secret from disapproving relations or employers, and as a form of self-expression.  Derby girls are attached to their skate names.  So attached that they don’t want to share their name with any other skater, anywhere.  And name exclusivity is indeed the usual rule in derby.  How do the derby girls do it?

One thing they don’t do is resort to trademark law. Derby girls have instead developed a strong private norm of name uniqueness, a norm which is facilitated by the all-important Master Roster, a privately-administered list of skate names and their owners which was first distributed in 2005 and is now available and searchable online – see for yourself at http://www.twoevils.org/rollergirls/.  The Master Roster functions as a sort of private trademark registry, where registrsation gives priority, and priority is equivalent to a right of exclusive use.  And the norms that accompany it allow the Master Roster to stand in for the formal trademark law.  The result is a cheap and efficient system of private IP regulation tailored to the requirements of the derby girls.  Fagundes explains how the system works:

Three core principles govern derby-name regulation. First is a uniqueness requirement: Only one skater can skate under a given name. The second instantiates the idea of priority: Where two names are identical or excessively similar, the skater with the earlier claim to the name has the right to use it. The third creates elemental standards for resolving overlapping name conflicts: Where two names are reasonably similar, the second skater must ask the first skater for permission to use the name. This permission must be in writing and submitted to the Master Roster‘s administrators in order to authenticate it. Names that are very similar to preexisting names but that have been approved via written permission by the senior skater are listed on the Master Roster with the note “(cleared)”.

The system that skaters have developed for themselves is surprisingly complex, and yet apparently effective. New skaters are required to complete a probationary period before they may register a skate name.  The Master Roster contains an automatic name checker that advises if a name sought to be registered is too similar to a registered name.  And the administrator of the Master Roster has discretion to refuse to register a name if she determines it is too similar to a registered name.  When skaters retire, they are asked to inform the Master Roster’s administrator, so that their name can be made available again for use.

Moreover, the Master Roster is backed by a related set of informal but powerful enforcement norms.  Enforcement is done mostly via personal contact between skaters, and is backed with the threat of social disapproval by skaters of those who fail to comply with the naming rules.  As one skater told Fagundes:

Registering with two_evils [i.e., the Master Roster] is voluntary … but there are rules as to what can be registered. It‘s not just a free-for-all [. . .] send your name in and it‘s yours, it has to not conflict with one that‘s already on the list. And while there are no derby police that are going to tell you that you can‘t skate under a certain name, it‘s kinda like bathing. Bathing is voluntary and no one can MAKE you bathe, but if you choose not to bathe, there will be consequences from your community. Similarly, registering your name is voluntary, but there are consequences from the derby community if you choose not to register your name because you‘re using a duplicate name.

As Fagundes explains, membership in the skating community is a central value of derby for most derby girls. The result is widespread compliance, and few notable and persistent naming disputes.  But, in the few cases that reputational sanctions and shaming don’t work, there’s always violence.  Violence is a more credible potential sanction in derby because the sport itself is violent and thus retaliation can be secreted within the normal flow of a derby bout. As one derby girl put it, “there‘s no laws in place – you don‘t even have to register your derby name – it‘s COURTESY. Ref might not see you smash me in the face – but I know, and trust me baby, I‘m comin for ya.”  Added another, “I totally agree with the not stealing/copying of names… Someone once said imitation was the best form of flattery… So flatter me and then let me kick your a$$ (sic).”

One important question remains: Why do derby girls get so bent out of shape about imitation of their skate names?  The names don’t have any market value, and they don’t cost anything to acquire.  The puzzle deepens when we see derby girls objecting to use of a similar skate name even when the later user competes in a derby league hundreds or even thousands of miles away.  Competition in roller derby is regional, so why would a skater in Charlottesville, Virginia care about later use of a similar name in Los Angeles, California?  Fagundes has an answer:

Derby girls care about maintaining the uniqueness of their aliases for three primary reasons. First, names in derby function as trademarks do in the commercial world: they ensure that skaters will not be confused with one another, and that the viewing public can tell skaters apart . . . . Second, and probably more importantly, though, skaters care about the uniqueness of their names despite their lack of discernible market value because skate names are a repository for the identities that skaters work so hard to create in a subculture that is profoundly important to them . . . .  Third, . . . [f]or many skaters, then, the best individual choice from a purely selfish perspective would be to deviate from the name-uniqueness norm and grab whatever name they want (even if it‘s already in use), while everyone else respects the rules (so that there‘s no threat of someone infringing the defecting skater‘s chosen name). But in practical terms, defection tends to be a bad strategy because it threatens a cascade of noncompliance that could lead to countless people sharing your name and to general chaos and dissension in the derby world. Derby girls tempted to defect thus still tend to comply with the derby-name uniqueness norm as a second-best strategy that assures them that while they may not be able to have their ideal name, they can at least be confident that when they find a desirable, unclaimed name, it will be theirs alone.

The result is a (so far) stable system of private norms that provide an effective stand-in for formal trademark law and protect the value that derby girls place on unique skate names.  And although this may sound similar to the story of social norms regulating copying by chefs and stand-up comics, derby is, Fagundes insists, importantly different.  Formal copyright law is, for doctrinal and practical reasons, not available to protect comedians’ jokes or chefs’ recipes.  And yet trademark law, Fagundes argues, could provide effective protection for skate names.  Derby girls turn to private ordering because they choose to, not because they must.  Fagundes says that his account of private ordering in derby is thus unlike the “legal centralist” accounts of norms in stand-up comedy and cuisine.  Those accounts posit that norms arise where law cannot govern.  But in the case of derby, norms have been freely chosen over law.

I’m not sure that this last point is correct, because derby girls who want to use formal trademark law to protect their skate names face at least one potentially important limitation. Under trademark law’s Dawn Donut rule, an owner of a registered mark cannot enjoin a good-faith junior user doing business solely within a market geographically distinct from the senior user’s and which the senior user has no plans to enter. Derby is a regional enterprise, and derby girls would therefore face substantial barriers to achieving more than local protection via formal law.  But derby girls want to own their names, and they want them to be unique not just in their local area, but across the world of derby.  For this reason, formal trademark law cannot give them what they’ve achieved via private ordering.  (There is also a use in commerce issue, but I agree with Fagundes that derby girls can likely figure out a way to satisfy this requirement of trademark law.)

In any event, this is a minor quibble with a very valuable – and fun – paper.  Highly recommended.

 
 
Discussion

8 comments
  1. 1

    I liked the paper a lot too, but there are other aspects to these lessons that are worth considering. One is that “Derby Girls” can only choose names that are acceptable to their corporate overlords, so their ability to self express is fairly significantly limited. Anybody who wants to express herself by skating as “Velma Vagina” for example is likely to be out of luck. A second is that the names are “owned” by the corporate entities, not the “Derby Girls” themselves, so while the names may become registered trademarks they won’t be held by the skaters. Finally, if you look at the roster, many of the names are very derivative, referencing other people. For example, one woman skates as “Sarah Baracuda” which of course was Sarah Palin’s nickname when she played basketball. Several other names riff on Palin as well, which doesn’t really reflect a norm that rejects imitation, to say the least. I think the fact that the norms are evolving under extremely constricted circumstances is important to note too, and it is something I raised with Dave recently.

     
    • 1.1

      Professor Bartow, I’m very interested in your assertions/assumptions, and hope I might shed a little light on the derby naming conventions.

      First, the names are neither approved nor owned by “corporate overlords.” The International Rollergirls’ Master Roster (or TwoEvils, linked above) is simply a database run by some volunteers. It used to be a spreadsheet kept by one woman, but has grown as the sport has, with volunteers coding algorithms to detect phonemic similarities (e.g. Paige Burner, Page Burna), cross-checking, and ultimately approving names. Approval is not based on social acceptability as determined by those volunteers (so Velma Vagina is available if you are interested in trying out!) — indeed, it is the leagues themselves, run democratically by the skaters, which determine what is acceptable. Do a “ctrl-F” search of the list for anatomical and scatological terms to see that some leagues are fairly free-wheeling with what is considered acceptable (everyone wants to be part of the Vagine Regime). Any restrictions leagues self-impose is in the interest of keeping the announcing family-friendly.

      Unfortunately I cannot answer the question of whether the small minority of rollergirls who have trademarks for their derby names hold the trademarks themselves (I believe that they apply and hold the trademarks individually), but the current convention is that names travel with a skater. If she leaves a league, her name is transferred along with her. Withholding of names was a tactic that has been used to try to prevent skaters from breaking off and forming other leagues, see “Hell on Wheels,” Crashcam Films (2007), but fails the only law of this negative-space convention: the douchebag rule.

      Lastly, I would point out that imitation and satire are two separate things. It is certainly the case that most derby names are plays on words, or plays on other names or the skater’s own name– a practice most similar to drag queen names. But this is not necessary, nor is it the case across the board (for example, Tara Armov, Suzy Hotrod, Urrk’n Jerk’n as Booty Blockya). In fact, as I believe the article points out, there are at least two leagues and one interleague exhibition team that play under their legal names.

      One question for Sprigman is whether the Dawn Donut rule applies when the activity is *not* entirely regional. There has been national interleague play since 2006, and roller derby is becoming increasingly international with leagues cropping up on nearly every continent. Last year was the first time that the WFTDA tournament was renamed the “Championship” (rather than “Nationals”) to reflect the fact that WFTDA leagues in other countries are eligible to take home the Hydra. At least theoretically, it is the goal of most WFTDA leagues to compete beyond the regional level, and at present there is no distinction between the players who are happy to play at the home-team level and those who want to compete in the upcoming World Cup.

       
  2. 2

    Skaters may be able to register any name they like (which complies with the other rules) on the Master Roster (why isn’t it the Mistress Roster?) but they can’t actually *skate under* a name that any given League refuses to approve. And I have it on pretty good authority that many Leagues would never approve something “unfamily friendly” (to use your framing) like Velma Vagina. My point wasn’t about what could be registered but about the depth and breadth of personal self expression that skaters can engage in when they choose names and develop personae, and I stand by my assertion that this is heavily governed by business interests, i.e. corporate overlords. I confirmed this with the author of the article, and also with a colleague who coaches Roller Derby, and several Derby Girls.

    On the trademark issue, I was relying in part on information provided in the article itself. Perhaps you should re-read what David Fagundes himself says at (e.g.) pages 41-43 and accompanying footnotes. I did some related research as well, and learned that most Derby Girls have to cede control of their names to their corporate overlords as a condition of skating. Given that many Derby Girls have to pay to skate to begin with, in my view this is a situation ripe for exploitation not unlike what is often seen in college athletics.

    I am not sure why you think “that imitation and satire are two separate things” but in my opinion they can be closely related. I do not think there is anything wrong with a skater using a name that references or is used by someone else in another context. But this is not accurately labeled “originality” or a rejection of imitation,

     
  3. 3

    Oh yes, and “corporate overlords” was partly tongue in cheek, but given the corporate sponsorship that many teams rely on (see for example this list of corporate sponsors: http://www.santacruzderbygirls.org/support ) I don’t think it is unreasonable.

     
    • 3.1
      On January 23, 2012 at 7:43 pm, wonton said:

      League sponsors have nothing to do with Two Evils. Two Evils who makes the master roster is independent from all leagues and such sponsors.

       
  4. 4

    Finally, I have actually done some very minor pro bono work for some Derby Girls and while that is privileged, I found through one simple Google search a sample of “corporate overlordism” online here:http://www.nashvillejrd.com/documents/NJRDRegistration.pdf

    Here is what is says about skater names (at page 4):

    PHOTO & VIDEO RELEASE AGREEMENT
    “For consideration which I acknowledge, I irrevocably grant to The Nashville Junior Derby League, licensees, assigns and successors the right to use my image and (skater) name in all forms and media including composite or modified
    representations for all purposes, including advertising, trade or any commercial purpose throughout the world and in perpetuity. I waive the right to inspect or approve versions of my image used for publication or the written copy that may be used in connection with the images. I relinquish any right that I may have to examine or approve the completed product or products or the advertising copy or printed material that may be used in conjunction therewith or the use to which it may be applied. I release, licensees, assigns and successors from any claims that may arise regarding the use of my image including any claims of defamation, invasion of privacy, or infringement of moral rights, rights of publicity or copyright. Nashville Junior Roller Derby League is permitted, although not obligated, to include my name as a credit in connection with the image. I have read and understood the photo release agreement. …”

    In my experience this is pretty typical.

     
  5. 5
    On May 24, 2011 at 11:02 am, Dave Fagundes said:

    OK, just a few quick points on some of the factual issues. True that there generally needs to be some kind of league approval for names (likely via name wranglers), but the league management is comprised of skaters themselves, so it seems to me more a community consensus than a matter of command-and-control. There is one league that requires cession of name rights (LA Derby Dolls), but it’s the exception not the rule, and the latter is something I should make clearer in the paper.

    In terms of the family-friendliness, it may vary from league to league. I suspect that the league in Columbia, SC may be more restrictive than in other parts of the country. In SoCal, I can think of approved names like Vagillante, Vulvarine, and (less obviously), Raven Seaward, to the extent that those would be regarded as “family unfriendly.” (And these names are all from LADD, which is, I think, on the higher end of corporate influence.)

    In any event, if the point is just that self-expression via derby name is not unlimited, then yes, that’s got to be true. Names are regulated, and regulation places limits on conduct. But I don’t think the regulation is noxious or terribly identity-suppressive, and in other ways it enhances self-expression by assuring that others don’t bite on your style and so that skaters can feel confident that their name is theirs alone.

     
  6. 6
    On January 23, 2012 at 7:45 pm, wonton said:

    Good analysis and interesting subject. Just wanted to clarify that roller derby is all SPORT. It is not a spectacle just because women are doing it and we choose to play in feminine clothing. It is an extremely difficult sport and is all real.