How intellectual must intellectual property be?
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Kim Kardashian, the Armenian-American reality TV star, socialite, model, and actress, is suing the clothing store chain Old Navy in California for a sum in the tens of millions, on the grounds that they are using a Kardashian lookalike, Melissa Molinaro, in their advertising. But that's not the remarkable thing (this is Language Log, not Reality TV Financial Catfight Log). The remarkable thing is contained in a remark to the press by Kardashian's lawyer, Gary Hecker:
Kim Kardashian's identity and persona are valuable. When her intellectual property rights are violated, she intends to enforce them.
 Molinaro |
 Kardashian |
Intellectual property rights? I thought the phrase meant rights to property created through activity of the intellect: ownable intangible assets such as music, literature, art, inventions, slogans, symbols, and designs. These can be protected in a business context through copyrights on songs and books, trademarks on slogans and symbols, patents on inventions, and so on. Can the notion of intellectual property really be stretched to cover the look of your face and hair and breasts? Does intellectual now mean simply "non-tangible"? I hope not. Because in that case we academics will need to find a new word that has the present meaning of intellectual.
Update: Jonathan Weinberg, Professor of Law at Wayne State University, is of the opinion that the suit might not be all that implausible. He writes:
As you'll have guessed, Mr. Hecker's usage has little to do with the meaning of the word "intellectual" in isolation. Hecker is invoking a body of law called the "right of publicity," which (speaking generally) gives a celebrity the exclusive right to control the commercial use of her name and likeness. As the Ninth Circuit once put it: "Considerable energy and ingenuity are expended by those who have achieved celebrity value to exploit it for profit. The law protects the celebrity's right to exploit this value whether the celebrity has achieved her fame out of rare ability, dumb luck, or a combination thereof." Lawyers generally class the right of publicity within the amalgam of doctrines loosely known as "intellectual property law," largely because intellectual property law is understood to include trademark law, and trademark law and the right of publicity seem related. (When you think about it, trademark law isn't so much about "the activity of the intellect" either. Owens-Corning got trademark protection for coloring its insulation a particular shade of pink because consumers understood that shade of pink as a source identifier, not because of its intellectual or creative work in choosing that shade.) True that the meaning of the phrase "intellectual property" has departed from the meaning of "intellectual" that "we academics" use — but since when do the folks at Language Log Plaza condemn polysemy?
He's quite right that there's nothing wrong with polysemy. (I'm not serious when I say that we academics will need to find a new word that has the present meaning of intellectual; I'm joshing you. And if you examine the post above with a very sharp eye you will find that's not the only point at which I'm joshing you.)
In fact we may not even need to posit polysemy (several meanings for a single word) in this case: we may simply be seeing a sign that the phrase intellectual property is becoming lexicalized (at least in legalese), which means you can no longer compute its meaning from what intellectual means and what property means. Remember, what linguists mean by compositionality only holds for the regular, syntactically composed majority of the language. In the phrases that end up having to be listed in dictionaries, it has broken down, in the sense that you can't work out what the whole phrase means by looking at the meanings of the parts and how they have been put together.
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