Associate Dean Sunder Delivers Dykstra Lecture
Senior Associate Dean Madhavi Sunder spoke on “Intellectual Property in the Experience Economy” at the Lecture in Honor of the Daniel J. Dykstra Chair on November 7. The event celebrated Sunder’s appointment to succeed former Dean Rex Perschbacher as the new Daniel J. Dykstra chair. The audience included numerous King Hall faculty members and Daniel J. Dykstra, Jr., the son of the late Professor Daniel J. Dykstra.
“What pleases me most about this ceremony of Dean Sunder assuming the chair is that, like Dan Dykstra, and like Dean Rex Perschbacher, Dean Sunder exemplifies the true spirit of King Hall,” said Dean Kevin R. Johnson. He talked about Dean Sunder’s many contributions to UC Davis School of Law and her status as one of the most influential Intellectual Property scholars of the past decade.
Dean Sunder’s talk was based on a work-in-progress paper that examines intellectual property in light of the growing importance of the “experience economy.”
“Today’s consumers demand experiences,” said Sunder. “From Star Wars to Harry Potter, fans do not just want to watch or read about their favorite characters. They want to be them. They want to don the robes of Gryffindor, flick their wands, and drink the butter beer.”
Copyright holders generally have been tolerant of such activities, but Sunder anticipates that as profit potential of the “experience economy” increases, they will be less forbearing. She talked about how the Copyright Act defined derivative works in setting boundaries on merchandising rights. As the value of merchandising has grown, an “if value, then right” standard has emerged, Sunder said.
“Courts, recognizing these exclusive marketing rights as highly lucrative, have supported them because they are so valuable, often by steering away from conceptual moorings of trademark and copyright law,” she said. “Call this legal model of granting a copyright and trademark holder rights to demand users to license fan activity ‘pay to play.’”
Sunder cautioned that granting such rights could curtail the ability of consumers to actively engage with creative works and participate in “cultural play.”
“Experiencing and doing with others matters,” said Sunder. “Our cultural worlds touch us. Fictional worlds become real in the sense that they become artifacts to be referenced and actors that shape our culture and our selves. Incentives for the authors of the fictional universes that we love are important, but we must also preserve the capability to critically and creatively engage cultural work with all of our senses.”