Transproperty: Intellectual property and the ideal property form


This paper makes a contribution to the growing literatures on critical media literacy and intellectual property. While new forms of participatory culture, social production, user-generated content and new forms of social engagement have developed through the use of digital technology, those very forms of engagement are shaped by legal definitions and commercial practices that constitute the operating system of the digital economy. It will be shown that a shift toward propertization has occurred in copyright, trademark and the right of publicity. Further, each of these forms of intellectual property law has been strengthened, lengthened and, increasingly, used in relation to the others. The objects of various intellectual property forms (creative works, marks, and publicity rights) are abstracted from their original contexts and treated in an analogous way – as property, by the information and entertainment industries, the courts, and legislators, and even the general public. In such a media ecology it makes sense to see cultural properties as transpropertied, where the multi-faceted character of such intellectual artifacts requires the interaction and protection of formerly distinct forms of IP protection. Using examples from literature, cinema, and comic books the paper will trace the development of transproperty and will offer suggestions for how an understanding of transproperty strengthens our media literacy.


Cet article vient contribuer à la documentation de plus en plus abondante sur l'initiation critique aux médias et la propriété intellectuelle. Alors que de nouvelles formes de culture participative, de production sociale, de contenu généré par les utilisateurs et de nouvelles formes d'engagement social se sont développées grâce à l'utilisation de la technologie numérique, ces mêmes formes d'engagement sont aussi façonnées par les définitions juridiques et les pratiques commerciales qui constituent le système d'exploitation de l'économie numérique. Il a été démontré qu'il s'est produit une évolution vers l'appropriation dans le droit d'auteur, les marques commerciales et les droits de publicité. En outre, chacune de ces formes de droit à la propriété intellectuelle a été renforcée, augmentée et, de plus en plus, utilisée les unes par rapport aux autres. Les objets des diverses formes de propriété intellectuelle (œuvres de création, marques et droits de publicité) sont extraits de leur contexte original et traités de façon analogue, en tant que propriété, par les industries de l'information et du divertissement, les tribunaux, les législateurs, et même le grand public. Dans le contexte de cette écologie des médias, il est normal de voir les propriétés intellectuelles comme faisant l'objet d'une transpropriété, où le caractère multidimensionnel de ces artéfacts intellectuels nécessite l'interaction et la protection de formes anciennement distinctes de protection de la propriété intellectuelle. Au moyen d'exemples de la littérature, du cinéma et des bandes dessinées, l'article suivra le développement de la transpropriété et offrira des suggestions afin d'expliquer comment la compréhension de la transpropriété peut solidifier notre connaissance des médias.


Transproperty, transmedia, intellectual property, copyright, popular culture, cultural industries, fictional characters, publicity rights, media literacy

How to Cite

Downes, D. (2016). Transproperty: Intellectual property and the ideal property form. Digital Studies/le Champ Numérique, 6(4). DOI:


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Media Literacy and Critical Information Studies are emerging areas of importance for media and digital humanities scholars. One aspect of importance in these areas is the tension between our own creative and interpretive engagement with the characters, situations and environments situated in media texts and the regulatory influences of intellectual property law. To adequately and effectively engage in the digitally dependent age of social media and globalized culture industries we must all become critically media literate. As a contribution to such a critical media literacy I propose a necessary concept to complement Jenkins' characterization of transmedia and the so-called "participation gap" between those who possess and use the media literacy skills required to navigate the contemporary mediated environment of popular culture and those who do not. I will show that it makes increasing sense to view intellectual property in the age of digital media as transpropertied information.

Transproperty is a new "ideal" form of intellectual property based on emerging practices and converging ideas associated with copyright, trademark, and celebrity rights (Downes 2014). Elvis provides an example of transproperty. In contrast to the significance that visual representations of Elvis have for fans, critics and academics, is the status his image holds as intellectual property owned and managed since 1977 by his former manager, his family and others (Madeley and Downes 2015). While one might be tempted to identify transproperty as a consequence of the Internet, digital culture and economic globalization, it is, in fact, the result of almost a century of interaction between mass media, advertising and the law and today transproperty claims structure and shape the creative, personal and social uses of iconic characters, whether they are fictional, living or dead.

Transproperty affects our interactions with mass-mediated culture in the digital age in several ways. On the one hand, fans, audiences, and creators use elements of popular culture as cultural material for their own projects. This is the lesson of participatory culture: through our interactions, interpretations and intersections with already existing cultural images, narratives, sounds and situations we create our own culture. On the other hand, the entertainment and information industries try to contain and capture this activity as user-generated content, which contributes to their efforts to shape and control interpretations of their own intellectual property.

The increased production of transmediated and franchised media properties is made possible by the transpropertied nature of current intellectual property protection, which is, in itself, the result of redefined concepts and misuse of formerly differentiated intellectual property laws of copyright, trademark, and publicity rights.


Henry Jenkins (2006) explores how storytelling across different media platforms is emerging as a dominant characteristic of the digital, global entertainment industries. Jenkins describes how media characters appear in film, television, publishing and promotional outlets as components of an expanded fictional universe. Jenkins calls such cross-platformed cultural properties transmedia. According to Jenkins, "transmedia storytelling represents a process where integral elements of a fiction get dispersed systematically across multiple delivery channels for the purpose of creating a unified and coordinated entertainment experience" (Jenkins 2010, 944). At its best transmedia storytelling entails more than simply presenting the same story across different media platforms,

[I]t is about using a medium to augment the base storyline for example–comics might provide back-story, games might allow you to explore the world in the story, social media might enable curated commentary on the story developing into a story line in and of itself and the television/web series offers unfolding episodes (Veale 2012, para. 2).

Audience members are encouraged to engage in a variety of ways with the narrative and to take ownership of a creative co-construction of the narrative universe. Jenkins argues that fan groups take part in a participatory culture in which people are able to engage and to express themselves, and where they can learn how to participate in the community through informal mentorship. Importantly, as a consequence of their participation, "members believe their contributions matter, and feel some degree of social connection with one another (at the least they care what other people think about what they have created)" (Jenkins et al. 2006, 3). Fans, as well as the rest of us, develop skills of media use, interpretation and critique necessary to participate in new forms of cultural consumption by developing a sense of critical media literacy.

Media literacy began as a movement among educators to address the influence of mass-mediated messages on children and to develop strategies to create critical and interpretive skills in children. Underscoring the media literacy project is the realization that media messages are constructed, which means that the media do not passively nor objectively reflect reality (Aufderheide 1993, 2). Recently, media literacy scholars have begun to recognize that a "holistic" approach to media literacy requires us to understand more than media content and the impact of mediated messages. We must understand the technological conditions of media production and dissemination as well as the structures of the media industries (Duran et al. 2008, 51).

In recent years, Jenkins has argued that participatory culture, with its understanding of transmedia, will form a crucial part in developing media literacy skills for digital society. For Jenkins, participatory culture is reworking the rules by which school, cultural expression, civic life, and work operate. A growing body of work has focused on the value of participatory culture and its long-term impact on children's understanding of themselves and the world around them (Jenkins et al. 2006, 9).

Regarding the impact of media technologies on learning, Vladimir Kinelev suggests that communication technologies are transforming our understanding of information, knowledge, and education. He writes,

These technologies constitute a truly international and global realm of action, where it is practically impossible to successfully impose national laws and regulations. Information and communication technologies based on the Internet, telenetworks, and intelligent computer systems open up new and exciting opportunities for the free flow of knowledge and information across national boundaries. They build an environment of a new kind of knowledge that is beyond local and indigenous context. It is cross-cultural and tends to be characterized by a diversity in source… (Kinelev 2011, 466).

It is important to distinguish celebratory claims about digital culture from rhetoric and marketing. For example, Andrejevic (2009) convincingly argues that the concept of interactivity – often described as one of the defining features of digital media – can also be seen as a ruse perpetrated by marketers who use interactive content on their clients' websites to subvert the user's critical engagement with online content. While Jenkins emphasizes the aspects of transmedia that view consumption as a potentially creative activity or social practice, it is also critical to see transmedia as a particular strategy for packaging narratives as commodities and "to extend the brand reach of the product by using multiple stories that are set in a single universe but told across a variety of outlets" (Veale 2012, para. 2, emphasis added).

Although audience members may feel empowered by their perceived ability to participate in the co-construction of communities around media content, the entertainment industry commodifies that very participation. Writing specifically about teens, Marianne Martens writes,

Commodification of teens occurs when teens are targeted as both consumers and creators of the cultural products created for them, and branding occurs when, as Alissa Quart (2003) describes, teens create identities for themselves around the brands they consume, while marketers attempt to align teens with the brands they are pitching (Martens 2011, 48).

While our media consumption may indicate new forms of participatory culture, social production, user-generated content and new forms of social engagement through the participatory qualities afforded by new media, those very forms of engagement are shaped by legal definitions and commercial practices that constitute the operating system of the digital economy. For the purposes of this paper, transmedia requires a broadened understanding of intellectual property and IP protection as companies desire increased control over access to their IP. In order to develop these skills, it is crucial to understand a shift toward propertization in copyright, trademark and the right of publicity. As each of these forms of intellectual property law are strengthened, lengthened and, increasingly, used in relation to the others, the objects of various intellectual property forms (creative works, marks, and publicity rights) are abstracted from their original contexts and treated in an analogous way – as property, by the information and entertainment industries, the courts, and legislators, and even the general public.

Just as Jenkins argues that transmedia cultural texts make no sense unless we examine them across each of the media platforms by means of which they are distributed and displayed, I suggest it makes sense to see cultural properties as transpropertied, where the multi-faceted character of such intellectual artifacts requires the interaction and protection of formerly distinct forms of IP protection.

Transproperty and the redefinition of intellectual property tools

Like property law in general, intellectual property laws govern a social relationship between people and things. Gard and Gard (2011, 161) describe the moment where intellectual property laws come into effect as the point where the law's mediating effect in social relations begins. Intellectual property, based on common law and statute in the Anglo-American tradition, developed to protect the time, effort and investment in intangible commodities (written work, the reputation of merchants, etc.). Writing specifically about copyright, Lewis Hyde (2010) describes the "stinted" right – where people have certain proscribed rights to things, places, or ideas, for a limited time. Copyright was understood as a bargain made between a creator and society. Copyright provided an incentive for an author to create more works by granting a monopoly on making and distributing copies. Society benefitted from copyright because the author's monopoly was of a limited duration after which time the works entered the public domain and were available to other creators as the raw material of new works.

Of particular concern to the present discussion is the fact that intellectual property laws have changed over time. They do not remain static. Indeed, according to David Vaver (2005, 896), "the history of all intellectual property law – has been one of expanding subject-matter and scope of protection: both what is protected and how deep protection should run, and also where and against whom it should run." Copyright duration has been extended and more kinds of work have been protected. Trademark now allows for the protection of fictional characters as well as celebrity images that are used as markers of corporate identity as products in the marketplace. Finally, celebrity rights allow celebrities, their heirs, and third party rights holders to capitalize on a celebrity's likeness, sound, or mannerisms, long after death. Taken together, the strengthening and broad application of these separate forms of intellectual property law combine to create the context for transproperty.

It has been suggested that in the late seventies, the shift in the conception of copyright protection from a bargained limited monopoly granted to creators to incentives without which creators will withhold their work, led, ultimately, to a transformation of copyright "into the right of a property owner to protect what is rightfully hers" (Litman 2001, 81). This shift in definition of the purpose of copyright corresponds to a change in America's status as a copyright holding nation. For example, the U.S. was an importer of copyrighted works from its founding until the mid-twentieth century. By the mid-1980s, the U.S. "had become one of the principal exporters of copyrighted goods in the world. With that shift, the U.S. attitude toward the Berne Convention – and toward securing foreign compliance for American intellectual property abroad – began to change. Finally, in 1988 after almost one hundred years of debate, the United States joined the convention" (Tang 2012, 223-4). Because of the rising importance of the U.S. entertainment industry the focus in this article is on U.S. developments as indicative of trends affecting the global culture industry.

For the entertainment industries, copyright laws, in particular rights of copy, distribution and performance, permit the transfer of ownership claims in information and cultural goods (Bettig 1996, 81). Increasingly, in the entertainment industries, it is the transfer of such claims that monetizes IP. Indeed, by the mid-1990s, IP generated close to $240 billion USD, over 20 percent of world trade (Rifkin 2000, 8). Indeed, 38 of the top grossing films of all time are genre films, with superhero, science fiction and horror films generating 35% of the domestic US box office in 2012 (D'Lando 2013). Bartholomew (2009, 466) shows that the entertainment industry has developed a fairly coherent litigation strategy to support their view of copyright as a property right. By bringing relatively unsympathetic defendants (like Napster) to trial, they have won precedent-setting cases that have extended the scope of copyright protection.

Trademark is a very different kind of instrument than copyright because there is no "bargain" between the creator and society. Indeed, as Sheldon Halpern argues, trademark "is a marketing construct whose justification cannot be found in the improvement of culture or society" (Halpern 2009, 1013). As Halpern puts it, trademark problems affect the pocket rather than the soul of society (ibid).

Trademarks create a relationship in the consumer's mind between the product and the company that is either the originator or holder of the trademark. The basis of trademark infringement is that someone else's use of a particular trademark can confuse consumers, thereby directing profits away from the trademark owner and, potentially, diffusing the impact of the trademark itself. Unlike copyright, trademarks are valid as long as they remain in use, strengthening the sense that trademarks are the property of their owners.

The process of identifying trademark as a property right happened earlier for trademark than copyright. Industrialization and the rise of the advertising industry between the 1880s and the 1920s made existing trademark laws seem obsolete. In the 19th century, judges "feared the recognition of a broad property right in trademarks would provide individual businesses with a monopoly in language. As one court explained, the English language is "the common property of mankind"" (Bartholomew 2008, 5). Magliocca (2004) argues that significant reform in intellectual property is often accompanied by the creation of "satellite doctrines" - new laws that either resolve problems in existing intellectual property law or which complicate matters. For example,

[t]he problems that gripped trademark doctrine in the Industrial Age led directly to the creation of misappropriation, dilution, and the right of publicity. All of these concepts were grounded in the inadequacy of the common law, and all three responded by developing new property rights that would bring about a swift expansion of trademark protection (Magliocca 2004, 1012-13).

To reinforce the point that the changes in intellectual property under discussion affect the global context, a European Union directive of 1989 required states to standardize their trademark regime ("approximate" is the term used in the directive) and a 1994 regulation established a European registry of trademarks within the EU modeled on the American Lanham Act which serves as a registry of state based cases. Thus, there are strong similarities between EU and American trademark systems (Vaver 2005, 846). Finally, there has been pressure in Europe to expand what can be trademarked, "to include as a trademark virtually any perceptible feature in the sensory world that can be used to attract custom" (Vaver 2005, 897).

The right of publicity has its roots in the right of privacy, articulated by Samuel Warren and Louis Brandeis (1890). As originally conceived, the right of privacy was intended to protect private individuals from intrusion into their lives by the press. The right of publicity was one of the satellite doctrines that emerged in the 20th century to address the perceived inadequacies of the common law trademark system in the face of industrialization and mass-society. Nimmer (1954) argued for the creation of a right of publicity understood as "the right of each person to control and profit from the publicity values which he has created." Nimmer's major premise was that "fame was the result of individual skill and hard work" (Magliocca 2004, 1030). Right of publicity cases generally involved the wrongful or unauthorized use of a celebrity's likeness or name (Prosser 1960). The focus of the right of publicity is on protecting the celebrity's identity from economic exploitation and providing an incentive for creativity and achievement. "This has led some commentators to observe that a Lanham Act claim for false endorsement is practically the federal equivalent of the state protected right of publicity" (Zimdahl 2005, 1825).

Over time, a number of states enacted right of publicity legislation. In some, led by Indiana and Tennessee and a case initiated by the estate of Elvis Presley, a celebrity's publicity rights extend after the death of the celebrity and are "descendible;" that is, they can be exploited by heirs or, as in the case of Presley, companies who purchase those rights (Bartholemew 2011, 315–17).

Companies have emerged in the past twenty years whose specific purpose is to propertize celebrities, using the language of branding and the conflated assumptions shared by copyright, trademark and publicity rights cases that "image" is property. These companies claim that resources like classic films and Hollywood icons deserve "our attention and respect" ( While companies are willing to pay extraordinary sums for the rights to commercially exploit celebrities such as Elvis or Muhammad Ali, others exploit the knowledge and contacts of their heirs in order to control the new publicity rights as property and to brand those celebrities as products (Verrier 2012; see also Contact Music 2009).

Bram Stoker Estate LLC, based in the United States, represents the direct descendants of the author in the United Kingdom. The company has consolidated the international rights and trademarks of the Bram Stoker Estate. Dacre Stoker manages the rights in the US and South America, while Stoker's grandson Robin MacCaw manages them for the UK, Europe and the Far East. Bram Stoker Estate LLC treats "all things Stoker" as a family business, freely applying US common law publicity rights to establish Bram Stoker as a brand. For example, in the afterword to Dracula The Un-dead, co-author Ian Holt promotes the re-establishment of Dracula and Bram Stoker as Stoker-controlled brands by stating, "if you don't see the bat-logo, it's not official Bram Stoker Dracula merchandise" (Stoker and Holt, 2009, 423, emphasis added).

Unlike trademark law, which bears strong similarities to the American system, Vaver argues that celebrity rights are a mixed bag in Europe. In Britain, for example, attempts to stop vendors from selling Elvis merchandise or candies called Kojakpops after the television character, were unsuccessful. In the EU, "Marketers cannot assume that the rights they have in one jurisdiction will automatically be recognized or translated into another jurisdiction unless they undertake some active marketing there too" (Vaver 2005, 909). This sort of critique appears, although less frequently, in the U.S. context as well. Some argue that the right of publicity, like trademark, should not be seen as an independent merchandising or property right (Halpern 2009).

While on the one hand it serves the interests of right of publicity holders to think of a celebrity as a brand, and as a property, it serves the interests of copyright and trademark holders to demystify the "artist" so that both the artist and her works can be propertized. For Fisk (2011, 175), "the roles of the law in mediating creation, ownership, attribution, and public recognition [are] dominant features of twentieth-century authorship."

Work for hire is an invisible part of the structure of the Culture Industry as articulated by Adorno and Horkheimer (1979). In particular, work for hire is a more concrete component of the Global Culture Industry described by Lash and Lury (2007). Authorship can be understood as a commodity – labour for sale. Decherney (2012) describes how Hollywood deliberately undervalued the importance of writers. Until the 1932 Code of Practice was established in Hollywood, producers treated writers as technicians. Many writers could be called in to work on a particular script (some receiving onscreen credit while others did not). The Hollywood model of authorship was regulated by talent guilds and the studios through collective agreements and through arbitration to resolve disputes. By the 1950s, the Screen Writer's Guild negotiated better contracts for writers and Hollywood found that while copyright law cannot protect ideas, contracts can (Decherney 2012, 89–101). Work for hire also became a structural facet of the re-thinking of creativity in Madison Avenue advertising agencies in the 1950s and 60s. Both in Madison Avenue and in the comic book industry work for hire practices minimized the individual contributions made by writers and artists and created an economic separation between the creative workers and their management. According to Fisk,

To be an author came to mean many things in the twentieth century, with particularly wide variation in the nature and degree of creativity involved and in the status accorded to different types of authorship. An author is an originator. An author is the one whose name is on the work. An author is one who is recognized as an originator. Under copyright law, an author is a presumptive owner. But under the work-for-hire doctrine, an author is the employer of a creator. Finally, in some contexts, authorship emerged into the concept of a trademark or corporate brand and, eventually, into the concept of celebrity, in which an author is a persona or the creator of a persona (Fisk 2011, 177).

According to one recent commentator, thinking of art making as brand making resolves a number of intellectual property problems that are peculiar to the art world (Tang 2012). Tang argues that in the 1960s the rise of "the contemporary contingent object – that is, an art object made from industrial materials, easily fabricated and reproduced, and highly context dependent" challenged traditional notions of the status and role of the artist (Buskirk 2003, 4 Tang 2012, 237). If, for example, Andy Warhol hired people to produce his silk screened portraits of Elvis and Marilyn Monroe, were they Warhol works at all? However, Tang considers trademark the solution and suggests that "if we consider the artist's name merely as source-identifying or "authenticating" rather than indicative of authorial touch, and reputation as commercial goodwill rather than personal cachet … [t]he concept of reputation can now be reformulated to signify an artist's strategic choices on how best to efficiently trade on his public image, just as trademark owners trade on their goodwill (a term used in trademark law to denote favorable public regard)" (Tang 2012, 234).

The effect of this redefinition of the artist has a similar effect to the work-for-hire doctrine. Works of art, screenplays, likenesses and reputations are symbolically flattened into similar property-like objects.

To sum up, in copyright the "bargain" between creators/authors and society has been redefined as a property right; in trademark, the law has been standardized and, where unfair competition is inadequate, new concepts and rights like the right of publicity have emerged – themselves subject to the pressure to propertize. Finally, the idea of the creator – whether author or artist, has been reconceived over the past century to fit more comfortably within a propertized system of IP law.

It is important to emphasize that the move to property I am describing, is neither seamless nor uncontested. Elsewhere, I have shown how the tests used by the US courts in copyright, trademark, and right of publicity cases have been used to transgress the boundaries of the three forms of IP (Downes 2014). The testing of the boundaries of intellectual property law with regard to the protection of fictional characters, visual characters and the reputations of famous people has had mixed results.

For example, in the 1920s, Charles Chaplin successfully used copyright infringement to protect his use of the Tramp character from copycat artists. Chaplin's global celebrity so identified him with the Tramp that it became impossible for other performers to play a tramp without evoking Chaplin. Subsequent invocations of that case were made by lawyers in the courts "to protect performers from defamation, trademark infringement, unfair competition, and lower echelon imitators who tarnished their clients' reputation. The Chaplin precedent emerged as a tool for policing performers' reputations rather than for protecting their originality" (Decherney 2011, 153).

In 1993, invoking the California right of publicity, game show hostess Vanna White sued Samsung Electronics America on the grounds that a Samsung ad depicting a blond wigged robot standing at a Wheel of Fortune wheel constituted an appropriation of her likeness. White won the case in 1994, and the victory had several consequences. It became possible for celebrities to assert property rights to all the attributes that constituted their personae (including clothing, mannerisms and tone of voice) (Braatz 1994, 221; see also Halpern 2009). Further, by rejecting Samsung's assertion that the robot in the ad was a parody of White, the California court created an expansive right of publicity doctrine that conflicted with copyright law (Braatz 1994, 163).

In 2001, musicians Edgar and Johnny Winter lost a case against a comic book creator who used their likenesses as villains. According to Peles (2004, 310), "the court utilized, for only the second time, a test that it developed in 2001— a copyright based "fair use" test for the right of publicity." The case was decided in favour of the comic book because the work was deemed suitably transformative such that the brothers' right of publicity was not challenged by the portrayal.

In 2013, author Leslie Klinger filed a civil suit in Illinois against Conan Doyle Estate Ltd. The suit was initiated in response to the Estate's demand that Klinger pay a licensing fee for a collection of stories based on characters from Doyle's works. "The case is somewhat unusual," writes one commentator, "in that the Doyle estate has not sued for infringement – it has merely sought to use its standing as Doyle's representative to extract licensing fees" (Albanese 2013). In July 2014, the US Supreme Court refused to hear a petition from the Doyle Estate on the matter. Conan Doyle Estate Ltd. lost both the 2013 civil case and its subsequent appeal. Their threat to Klinger was to use their influence in the marketplace to prevent distribution of his "unlicensed" work through bookstores and online retailers (BBC 2014).

The term propertization is used in the context of intellectual property in reference to the attempt to gain legal recognition of exclusionary rights for the marks, works and reputations protected by copyright, trademark, and rights of publicity by intellectual property holders. Property is different from commodities because of this goal of achieving exclusionary rights. While Halpern (2009)calls propertization a "truly awful word," which is often used in the context of intellectual property discussions (See Bartholomew 2005; Lemley 1999). Indeed, as Lemley (1999, 1696) writes of trademark: "[o]ur language and our culture are impoverished when we cannot use the most familiar words to discuss – or to make fun of, or to criticize – the products and companies that are the basis of our economy … the more we propertize, the more transaction costs we impose on everyone."

Thus, it makes sense to think of the propertization of intellectual property as property rather than in more traditional terms as commodity. A commodity, while an object or service for sale in the marketplace, does not carry an explicit or presumed right to exclude (if, for example, I think of my labour as a commodity working as a writer for one publication does not necessarily bar another from hiring me) – although, in some cases, the commodity is also a rivalrous good – a piece of property such as a chair or a painting which, if I own it, precludes your use of the good without my permission). By contrast, intellectual property, made up of non-rivalrous goods (my listening to an mp3 does not preclude you from doing so and your listening does not diminish my copy in any way) has emphasized the social construction of exclusion through repeated claims to property rights on the part of copyright and trademark holders.

This social construction of exclusion is the contestable point in propertization. As Magliocca points out, "there is not much difference between monopoly and property. Both are based on the right to exclude. Property owners have the right to bar others from using their resources; monopolists can bar others from competing against them" (Magliocca 2004, 1019). Bartholomew (2005) goes further, arguing that intellectual property rights are, in fact, "more coercive than other property rights in that they control the actions of others by preventing them from making their own re-creations of the items in question. As a result, intellectual property ownership needs to be limited" (Bartholomew 2005, 206-7).

These redefinitions provide new insight into the relationships that we, as creators of user-generated content and participants in collective intelligence enterprises, have with the technologies, service providers and legal/ commercial system that govern our participation. Transproperty mediates in a new way – as a sort of Platonic property form where the limited, imperfect, and temporary qualities of intellectual property have been replaced, eroded, and redefined as a perfect, permanent set of property rights, and where rights holders no longer speak of selling something to a consumer but of providing access to their IP to users. Transproperty claims, albeit in an imperfect way, determine the creative, personal, and social uses of iconic characters, whether they be fictional, living, or dead (Downes 2014). While Stoker LLC, the Conan-Doyle Estate and Elvis Presley Enterprises police the use of their claimed transproperty through licensing arrangements, the Disney Corporation (and its subsidiary Marvel Studios) operates differently. From Disney's perspective, ownership of intellectual property shapes how its characters can appear.

The "Marvelous" world of transproperty

Superhero comics are, in some ways, the prototypical example of transmedia. As comic book historian Geoff Dyer explains,

Marvel was a universe. The more deeply you got into them the more encompassing Marvel comics became: characters from one title would guest in another (The Human Torch and Spider-Man were always crashing into each other's pages) so that each magazine offered a different glimpse of – and take on – a world that was imaginatively complete … Events in the various titles are "cohesive and interconnected" (Dyer 2004, 40).

In the case of DC, the narrative universe consists of a series of parallel worlds where some heroes age, where the Golden Age heroes exist alongside their younger counterparts, and some where the heroes are fictional characters. Several times in the past thirty years, these parallel worlds were faced with crises that enabled the companies to reboot characters and events to preserve a semblance of coherence and continuity. In addition, the characters from these mythic domains appear in film, on television, on toyshop shelves and in web-based encyclopedias detailing everything from their fictional biographies to political allegiances and superpowers.

However, the transpropertied nature of comic book characters demonstrates a broader problem in our relationship with the characters and narratives of popular culture. They are uneasy products of the intersection of culture and industry. Superhero stories play with mythological or archetypal themes. They can be understood as participatory experiments in genre across media. But, importantly, they are also significant sites of intellectual property. As writer Grant Morrison observes, "[l]itigation was somehow built into their atomic structure" (Morrison 2012, 34). So, while "… superhero comics' readers understand each thirty-two page pamphlet as a small element of one of two gigantic narratives, in which most characters have thematic or metaphoric significance . . . [the] two big stories have names – corporate names: Marvel and DC" (Wolk 2007, 90). It is this uneasy combination of corporate management and cultural interest (if not significance) that makes the comic book (and the comic book movie) a useful example of transproperty as well as transmedia. Let us look at a recent example to illustrate my point.

In June 2014, comic and movie websites circulated a rumour about unsettled relations between Marvel Studios (owned by Disney) and 20th Century Fox (who had purchased the rights to make films about a number of Marvel characters including the Fantastic Four and the X-Men from Marvel in a deal that makes it unlikely that Marvel will regain the rights to those characters as film properties).

With the release of a magazine promoting Marvel's upcoming 75th anniversary, it was observed that the Fantastic Four (the first heroes to appear when Marvel relaunched in 1961 under the creative control of Stan Lee and Jack Kirby) were absent from the cover. Blogger Rich Johnston reported that Marvel chose not to promote characters whose film rights were controlled by Fox. Johnston further suggested Marvel was increasingly unwilling to promote characters appearing in Fox films at the expense of Marvel's own (Johnston 2014a). Relations between the two studios had already been tested with the inclusion of the character Quicksilver in Bryan Singer's film X-Men: Days of Future Past. The character was included during production of the film when Marvel director Joss Whedon announced his inclusion in the upcoming Avenger's Age of Ultron film scheduled for release in 2015.

As blogger Devlin712 , industry insiders both confirmed and denied the rumours, generally laying the blame on Marvel CEO Ike Perlmutter's "rather personal politics when making decisions" as though the decision to stop promoting the Fantastic Four was simply a way to make Fox suffer (Johnston 2014c). As blogger Devlin712 concluded in late June, the cancellation of one Fantastic Four title is “increasing suspicion that Marvel intend (sic) to decrease the popularity of their comic book properties owned by 20th Century Fox” (Devlin712 2014; Johnston 2014b).

The blurring of copyright, trademark and work-for-hire rights discussed above has contributed to the strategies used by companies like DC and Marvel to manage their intellectual properties. Significantly, whereas (at least until the 1970s) the dominant view of copyright was one of a bargain between creators and the broader society, trademark was not based on such a bargain – it was commercial policy designed to protect consumers from misleading claims made by commercial entities in the marketplace.

For example, in an unusually collaborative move, publishing rivals DC Comics and Marvel jointly registered the terms superhero and supervillain in 1979. Even though the terms were so commonly used as to be unsupportable by trademark claims, no one challenged the trademark registration, and it was approved two years later (Payne 2006, 953). Copyright and trademark have been used to commodify the characters as well. Superhero costumes can also be protected – cases involving Superman, Wonder Woman and Marvel character suits as "skins" in computer games have all been decided in favour of the owners of the trademarks (Payne 2006, 952-3). The development of new costumes, changing the race or gender of a character, or changing relationships in the storyline can either be judged derivative works belonging to the copyright holder or new works that can be afforded protection. Such rights are of significant commercial value.

Take the case of Superman. "[In] the hands of a corporation," writes Ian Gordon, "Superman was more important as a business asset than as a fictional character. Once [National] recognized Superman's status as a commodity, they defined and sold him as a product in all his incarnations. By 1941, Superman was not so much a character who helped sell comic books as a product that comic books sold" (as quoted in Tom De Haven 2010, 73). On the drawn out legal battle between Captain Marvel and Superman which led to the bankruptcy of the Captain's publisher in 1952, Morrison comments, "A lucrative trademark was a jealously guarded intellectual property. National had their socialist strongman in fetters, milking his uniqueness for every dime and dollar. The last thing anyone wanted was another Superman, let alone a potentially more charming and profitable one. While National's legal team would eventually contrive to prove otherwise, Captain Marvel wasn't much like Superman at all" (Morrison 2012, 31).

Changes to US copyright law since the 1970s, now provide authors (and their heirs) with the right to reclaim their copyright interests thirty-five years from the time of the original transfer of ownership to a publisher regardless of any particular language in the transfer agreement. (Note, however, that artists and writers deemed to have created a "work for hire" for the publisher are not afforded the same ability to recapture their rights). While the heirs of Jerry Siegel and Joe Shuster reclaimed the copyright to Superman in 2013, these rights do not necessarily extend to the Man of Steel's appearances in other media. In a protracted and complicated legal battle, the heirs reclaimed copyright of characters and story elements, while the defendants (DC Comics and its parent company Time Warner Inc.) were found not guilty of "sweetheart" deals that diminished the revenues owed the estates of Siegel and Shuster. Siegel's heirs won a 2008 ruling that entitled them to profits earned by DC Comics (McNarry 2009). However, once the rights revert to the heirs, they would be able to exploit the transmedia potential of Superman in competition with Time Warner (Thrall 2009). However, two appeal cases in October 2012 and January 2013 saw the 2008 ruling overturned and the claim for copyright termination by the Shuster estate denied (Gardner 2013).

Similarly, the estates of comic book artists Jack Kirby and Joe Simon sued Marvel for control of characters including the Fantastic Four, the Hulk, and Captain America, all subjects of Hollywood films in the past decade (Goldberg 2010; see also Molinaro 2004). Such copyright cases create an additional layer of complexity for media companies whose business depends on the exploitation of fictional characters and their transfer between companies engaged in different forms of media. For instance, one can certainly see how articulations of corporate authorship play into fan debates over whether or not the Siegel and Shuster estates should regain their rights to Superman, with many fans expressing concern that the quality of the character's representations would inevitably suffer due of their lack of institutional resources and managerial acumen. Sampling fan posts on the web, Santo reports that comic book fans accept the corporate role in producing and maintaining characters over time: "the only reason the Superman character is what it is today (and worth all that money)," writes one poster, "is because of DC's work shepherding him over the past 70 years." Another fan writes "Superman didn't become the major property he is today because of [Siegel and Shuster]. He became this property because DC used and marketed him in this way" (Santo 2012, 199-200).

Marvel has sued creators for drawing their own creations outside the control of the company. They have even sent cease and desist orders to fans to prevent the use of their characters. When filmmaker Mike Pecci made a short film based on Marvel's vigilante the Punisher, he received a letter from Marvel:

While we appreciate your affection for the character, we must demand that you immediately stop your unauthorized use, advertising, sale and/or distribution of any production of the Punisher or any other Marvel-based films therefore, and any other uses of the images, likenesses, artwork or other intellectual property owned by Marvel (Pecci 2013).

The character Quicksilver is both a signifier of the gods Hermes or Mercury (quicksilver being the alchemical name for mercury) and an inversion of Detective Comics' the Flash, who also wore a costume that showed his debt to the Greco-Roman pantheon (Morrison 2012, 29-30). Both are examples of competing work-for-hire intellectual properties common to the comic book industry. The character will be positioned within a broad transmediated universe which seemed unlikely, if not impossible, a decade ago, but that is fast becoming business as usual for Hollywood's treatment of its intellectual property. However, the use of the character in two competing film franchises released through competing movie studios highlights the transmediated nature of intellectual properties in a globalized culture industry. In the Fox – Marvel universe, Pietro Maximov is a mutant. In the Marvel – Disney universe, Quicksilver is the result of evil genetic manipulation. For fans they are the same character, differentiated in the marketplace.


The transproperty concept describes the various IP laws and strategies such as work for hire that are used by IP holders (I refuse to call them owners) to control and contain the uses of elements, images, and representations such that they are propertized in practice if not actually in law. This is important because, handled in this way, the process of transpropertization elides and erodes the differences between celebrities and fictional characters in the eyes of the law to the extent that celebrities (actual personages) and fictional characters (virtual personages) are protected in the same ways to similar purposes as economic objects.

However, because transproperty is imperfect, because IP offers partial and limited protection for information goods, and because the move to transproperty is a recent trend in the commodification of information, audiences, fans, and creators still do their own cultural work with elements of the digital, cultural common, understood, in the end, as the raw material of our common cultural experience rather than simply that material which has fallen into a legally defined and increasingly limited and circumscribed public domain.

To have a critical media literacy requires us to decipher the complexities of intellectual property law and to realize that the tendency toward transpropertization is the result of human effort, accidental as well as deliberate misuse and redefinition of the concepts and remedies of intellectual property. In order to participate in mediated culture we must critically carve out a space for experimentation, expression and interpretation in our engagements with and uses of the stuff of culture.

Works Cited / Liste de références

Adorno, Theodore and Max Horkheimer. 1979. Dialectic of enlightenment. Translated by John Cumming. London, New York: Verso.

Albanese, Andrew. 2013. "Lawsuit seeks to put Sherlock Holmes in the public domain." Publishers weekly, February 19. Accessed February 19, 2013.

Andrejevic, Mark. 2009. "Critical media studies 2.0: an interactive upgrade." Interactions: Studies in Communication and Culture 1: 35-51.

Aufderheide, Patricia. 1993. National leadership conference on media literacy. Conference report. Washington D.C.: Aspen Institute.

Bartholomew, Mark. 2005. "Making a mark in the internet economy: A trademark analysis of search engine advertising." Oklahoma Law Review 58: 179-220.

___________ 2008. "Advertising and the transformation of trademark law." New Mexico Law Review 38: 1-48.

___________ 2009. "Copyright, trademark and secondary liability in Grokster." Columbia Journal of Law & the Arts 32.4: 445-70.

___________ 2011. "A right is Born: Celebrity, property, and postmodern lawmaking." Connecticut Law Review 44.2: 301-68.

Bettig, Ronald V., 1996. Copyrighting culture: The political economy of intellectual propert. Boulder: Westview Press.

BBC. 2014. "US Supreme Court rejects Sherlock copyright case." Accessed July 18.

Braatz, John R., 1994. "White v. Samsung electronics America: The ninth circuit turns a new letter in California right of publicity law." Pace Law Review 15: 161-222.

Buskirk, Martha. 2003. The contingent object of contemporary art. Cambridge, MA: MIT Press.

Contact Music. 2009. "Bogart and Bacall's son sues bosses." Accessed January 28.

Decherney, Peter. 2011. "Gag orders. Comedy, Chaplin, and copyright." In Modernism and copyright, edited by Paul K. Saint-Amour, 135-54. New York: Oxford University Press.

___________ 2012. Hollywood's copyright wars: From Edison to the internet. New York: Columbia University Press.

De Haven, Tom. 2010. Our hero. Superman on Earth. New Haven: Yale University Press.

Devlin712. 2014. "Marvel continues Fox lockout by cancelling ultimate fantastic four?" Comicbook movie news, June 18.

D'Lando, Chris. 2013. "The power of geek: Superfandom and why brands, media, and the world at large want in." Bleedingcool, July 25. Accessed July 24, 2014.

Downes, Daniel, 2014. "Branding culture: Fictional characters and undead celebrities in an era of "Transpropertied" Media." In Intellectual property for the 21st century: Interdisciplinary approaches, edited by B. Courtney Doagoo, Mistrale Goudreau, Madelaine Saginur and Teresa Scassa, 246-267. Toronto: Irwin Law.

Duran, Robert L., Bill Yousman, Kaitlin Walsh and Melanie Longshore, 2008. "Holistic media education. An assessment of the effectiveness of a college course in media literacy." Communication Quarterly 56.1: 49-68.

Dyer, Geoff. 2004. "Comics in a man's life." In Give our regards to the Atomsmashers: Writers on comics, edited by Sean Howe, 35-40. New York: Pantheon.

Fisk, Catherine. 2011. "The modern author at work on Madison avenue." In Modernism and copyright, edited by Paul K. Saint-Amour, 173-94. New York: Oxford University Press.

Gard, W. Ron and Elizabeth Townsend Gard. 2011. "Marked by modernism. Reconfiguring the "traditional contours of copyright protection" for the twenty-first century." In Modernism and copyright, edited by Paul K. Saint-Amour, 155-70. New York: Oxford University Press.

Gardner, Eriq. 2013. "Warner Bros. Wins blockbuster victory in legal battle for Superman." Hollywood reporter, January 10.

Goldberg, Jay. 2010. "King Kirby and the amazin' terminatin' copyrights: Who will prevail?!?" American University Intellectual Property Brief 12.1: 10-16.

Gordon, Ian. 1998. Comic strips and consumer culture, 1890-1945. Washington, D.C.: Smithsonian Institution Press.

Halpern, Sheldon W. 2009. "Trafficking in trademarks: Setting boundaries for the uneasy relationship between "property rights" and trademark and publicity rights." DePaul Law Review 58: 1013-46.

Howe, Sean ed. 2004. Give our regards to the Atomsmashers: Writers on comics. New York: Pantheon.

Hyde, Lewis. 2010. Common as air. Revolution, art, and ownership. New York: Farrar, Straus and Giroux.

Jenkins, Henry. 2006. Convergence culture. Where old and new media collide. New York: New York University Press.

Jenkins, Henry, Katie Clinton, Ravi Purushotma, Alice J. Robison and Margaret Weigel. 2006. Confronting the challenges of participatory culture: Media education for the 21st century. Chicago: Macarthur Foundation.

Jenkins, Henry, 2010. "Transmedia storytelling and entertainment: An annotated syllabus." Continuum: Journal of Media & Cultural Studies 24.6: 943-58.

Johnston, Richard. 2014a. "Artists given specific instructions not to use Fantastic Four Characters." Bleeding cool, May 30.

___________ 2014b. "Dissecting Tom Brevoort on the future of the Fantastic Four." Bleeding cool, June 2.

___________ 2014c. "Would Marvel really cancel Fantastic Four to snub Fox?" Bleeding cool, May 29.

Kinelev, Vladimir. 2011. "Philosophical issues of education for the information society." Triple C 9.12: 466-72.

Lash, Scott and Celia Lury. 2007. Global Culture Industry. London: Polity.

Lemley, Mark A. 1999. "The Modern Lanham Act and the death of common sense." Yale Law Journal 108: 1687-1715.

Litman, Jessica. 2001. Digital copyright. Amherst, NY: Prometheus Books.

Madeley, June, and Daniel Downes, 2015. "Pieces of Elvis: Representation, resurrection and repurposing in the media marketplace." In Death and the rock star. Edited by Catherine Strong and Barbara LeBrun, 148-61. Surrey: Ashgate.

Magliocca, Gerard N. 2004. "From Ashes to fire: Trademark and copyright in transition." North Carolina Law Review 82: 1009-66.

Martens, Marianne, 2011. "Transmedia teens: Affect, immaterial labor, and user-generated content." Convergence: The Journal of Research into New Media Technologies 17.1: 49-68.

McNary, Dave. 2009. "Warner Bros. Wins 'Superman' case." Variety, July 8.

MODA Entertainment. 2014. "About." Accessed August 12.

Molinaro, John. 2004. "Who owns captain America? Contested authorship, work-for-hire, and termination of rights under the copyright act of 1976." Georgia State Law Review 21.2: 565-92.

Morrison, Grant. 2012. Supergods. New York: Spiegel & Grau.

Nimmer, Melvin B. 1954. "The right of publicity." Law and Contemporary Problems 19: 203-23.

Payne, Britton. 2006. "Super Grokster: Untangling secondary liability, comic book heroes and the DMCA, and a filtering solution for infringing digital creations." Fordham Intellectual Property, Media and Entertainment Law Journal 16.3: 939-1016.

Pecci, Mike. 2013. "A better punisher – the story of a fan film." Bleeding cool, October 16.

Peles, Gil. 2004. "The right of publicity gone wild." UCLA Entertainment Law Review 11.2: 301-29.

Prosser, William L. 1960. "Privacy." California Law Review 48.3: 383-423.

Quart, Alissa. 2003. Branded: The Buying and Selling of Teenagers. Cambridge, MA: Perseus.

Rifkin, Jeremy. 2000. The Age of access: The new culture of hypercapitalism: Where all of life is a paid-for experience. New York: Putnam.

Saint-Amour, Paul K., eds. 2011. Modernism and copyright. New York: Oxford University Press.

Santo, Avi. 2012. "The Lone Ranger and the law: Legal battles over corporate authorship and intellectual property management, 1939-1942." Critical Studies in Media Communication 29.3: 1-17.

Stoker, Dacre and Ian Holt. 2009. Dracula the undead. Toronto: Viking Canada.

Tang, Xiyin. 2012. "The artist as brand: Toward a trademark conception of moral rights." Yale Law Journal 122: 218-57.

Thrall, Dietrich. 2009. "The final fate of SUPERMAN: Lawsuit settled in favor of creators Heirs – DC and Warner Brothers will lose all rights in 2013." Variety, August 14.

Vaver, David. 2005. "Recent trends in European trademark: Of shape, senses, and sensation." Trademark report 95: 895-913.

Veale, Dannette. 2012. "Digital engagement through digital storytelling." Cisco blogs, January 17.

Verrier, Richard. 2012. "Elvis will live on – at least digitally." Los Angeles times, June 7.

Warren, Samuel D. and Louis D Brandeis. 1890. "The right to privacy." Harvard Law Review 4.5: 193-221.

Wolk, Douglas. 2007. Reading comics (and what they mean).Cambridge, MA: Da Capo Press.

Zimdahl, Stephanie Dotson. 2005. "A celebrity balancing act: An analysis of trademark protection under the Lanham Act and the first amendment artistic expression defense." Northwestern University Law Review 99.4: 1817-56.

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