Intellectual Property's Need for a Disability Perspective

This Article approaches intellectual property law from a critical-disability theory perspective. It argues that, in specific instances, courts have gotten the law wrong because of a failure to take into account the perspective of persons with disabilities. In the context of law, and intellectual property law in particular, confronting those differences means taking into account a disability perspective even where all the parties in a given case are not disabled and where the dispute does not directly implicate issues of disability. This sua sponte accounting is necessary because intellectual property cases have the effect of defining rights that extend far beyond the lives of the parties to the dispute. Part I of this Article sketches out the disability context, including the significance of disability in our society and the law’s attempts to confront it. Part II considers the role of the fictional person in legal analysis and the importance this holds in the context of disability and intellectual property law. Part III examines a particular application for disability perspective in intellectual property law – non-word trademarks and the perspective of developmentally disabled persons. Part IV examines another application – three-dimensional works and the perspective of persons with visual impairments, the consideration of which carries implications for copyright, trademark, and the right of publicity. In its final analysis, this Article argues that the courts, in shaping the law and defining the bounds of intellectual property entitlements, should conscientiously use a disability perspective where appropriate, even when not called for by the parties. Doing so will effect a broader and more perfect realization of justice.