Ephron’s Legacy: A Message for Women Authors, Inventors and Creators

Nora Ephron

Last night, Nora Ephron passed.   Already the internet andblogosphere are filled with this news and discussion of the loss of an incredibly prolific, comical and impactful artist.  While she is associated with a broader feminist agenda, her real contributions were in giving comic and touching voice to life experiences that happened to be shared primarily by women.   Her clarion call to women, especially younger women, to “…be the heroine of your life, not the victim,” might have been her most poignant gift.

But what, you may well ask, has Ephron’s passing to do with intellectual property or the law of information?  Well everything and nothing at once…  I was once asked to opine upon the intersection of intellectual property protection and gender.  I was flummoxed by this question at first, feeling that certainly there was gender blindness when it comes to IP rights and their exploitation.  But if you scratch beneath the surface — as Ephron always did — the story is much more complicated.It’s breathtaking to remember that women were still considered chattel until several hundred years ago.  Then, having thrown off that burden, we still could not own property for another huge block of history.  So the notion that women can now create and monopolize intellectual property and benefit from their ideas, writings or inventions is still rather novel.  Ephron owned no less than 35 registered copyrights (or portions thereof) and those rights certainly gave her leverage when she negotiated movie deals.  But her experience is hardly the current “rule” so much as the exception that proves it—that women still don’t have as great a stake as men in intellectual property exploitation.

I am not equipped or even terribly interested in debating the relative dominance of men in the world of business today.  I can only attest to the fact that, in my experience as an IP lawyer, most of the intellectual property that is monetized each day is owned or controlled primarily by men.  This is not to suggest that men are “to blame” for the disparate participation of men and women – but it is an interesting idea to ponder that women, whose contributions to society and culture have historically included all manner of arts, crafts and improvements, still find themselves in a postindustrial world, struggling to lay claim to their inventive ideas and contributions.

People better schooled than I in feminist theory (like Ephron) will have explanations for some of this.  Female social patterning, which generally encourages collaboration over conflict and competition, can impact the amount of intellectual property rights women ultimately claim.  Women still tend to give credit rather than claim it.

Furthermore, intellectual property protection tends to reward the person who can be in the lab for 22 hours, or work for three days straight finishing his or her first novel.  Even in our increasingly gender respectful world, that person still tends to be the man of the house because the obligation of child rearing tends to fall predominantly upon women.   Finally, women (at least women past a certain age) might yet tend to see the monopolies that are granted by intellectual property rights as somewhat “unseemly” or improper – leading to a subtle unwillingness to claim status as an inventor or creator.

Interestingly, one of the earliest U.S. patents was actually granted to a woman – Mary Kies.  In 1809 Kies was issued a patent on a process for weaving straw that was used to make hats.  But let’s consider Mary’s rough contemporary,  Betsy Metcalf, who shunned the patent office and refused to file for protection of her weaving method, allegedly stating, “I didn’t want my name sent to Congress…”  Metcalf instead used her “invention” to employ and benefit area women in a lucrative trade. Apparently, Metcalf’s personal value system was in opposition, or in contrast to the patent laws that might have allowed her a valuable monopoly, but perhaps didn’t suit her own desire to employ her neighbors in what likely was a highly collaborative and rewarding social endeavor.  How very feminine does that sound?

This same social patterning that impacted Metcalf’s point of view still influences the way women negotiate their rights, including rights of attribution and invention today.  In my own practice I can’t count the number of times women have said to me:

“I don’t want to insist on a written agreement about the rights to this—it will harm the spirit of collaboration among us.” 

or

“I don’t need an agreement. I trust my colleagues.” 

or

“Frankly, I’ll just be happy if we can make a little money for the organization.  I don’t want to invest in laying claim to it myself.”

(Unscientific observation:  men have never said these things to me. They always want relationships set out in writing, and full credit for their contributions- just as it should be.)

More recent statistical research bears out my own experience that women tend to be slower in claiming rights.  A recent study out of Tel Aviv University notes that women made up only a relatively small percentage of the named inventors in patents issued between 2000-2005 in the U.S., Europe and Israel.  Similar research by Annette Kahler published in the Journal of Gender, Social Policy & The Law in 2011 concludes that while women inventorship has risen, it has done so only incrementally and quite slowly.

I have not done the analysis myself, but I suspect that you if tracked new copyright claims at the Library of Congress, even if you exclude corporate works for hire, you would see a disparate amount of claims by men, and probably a statistically significant number of claims by women that are shared rather than independent.   (Watch this space, I’ll do that analysis and come back with a fresh perspective in a week or two.)

The net of it is, women still have a ways to go in staking claims to their IP, but most of the distance can be gained by encouraging women simply to lay claim to what is theirs.  This can be done without changing the positive impacts that accompany collaboration and sharing.  While insisting on an agreement about invention or creation can put people of both genders off, in my experience it rarely chills the air so much that it impedes valuable contribution.  Conversely, failing to clarify ownership and inventorship for the sake of a sense of collaboration can have a deep and long lasting impact on the value of that endeavor to the individual whose name is left off the manuscript or the patent application.  Consequently, women must, as Ephron encouraged, be their own best voices and speak up for themselves when it comes to attribution and credit.