Properties of Green: On Color and its Rearticulation as a Corporate Asset

• In Event: 1240 - Law and Culture

Abstract

How does something become property for the first time? Although property often appears in sociological research as a precursor to the market, the adjudication of new property claims remains a relatively unexplored topic in the field. This paper seeks to fill this gap through a case study of the landmark 1995 U.S. Supreme Court case, Qualitex v. Jacobson, which granted corporations the right to trademark individual colors. Bearing in mind courts had prohibited these trademarks for most of the century, the work investigates the changes that allowed color to be conceived as a de facto corporate possession and institutionalized as property de jure. The analysis focuses on the work of attribution—the normative process of determining credit for the creation of an idea or work—within the broader context of property relations. I discuss the creation of the legal scaffolding for the idea that color could be corporate property in the form of a trademark, which steadily developed over the course of the twentieth century. My findings indicate that this happened in two ways: 1) through the rearticulation of color as an object of property rights in a variety of legal texts; and 2) through the judicial attribution of a particular color to a particular firm, based on quantitative metrics of creative labor. The paper concludes by addressing the broader socio-economic implications of conferring property rights on certain nodes of creative labor and not to others. It draws attention to the intellectual work of legitimizing new forms of property, but also to the invention of new instruments of attribution—registration, documentation, calculation, and evaluation—showing under what conditions it becomes possible for different authorities to make the possession of something for the first time appear not only lawful, but also just, and perhaps even natural.

Author

• Meredith Hall, The New School for Social Research