Introduction
In 1790, Mercy Otis Warren registered her collection of patriotic poems with the District Court for the District of Massachusetts, becoming one of the first women to register a copyright in the United States.Footnote 1 When copyright functions were centralized in the Library of Congress in 1870, several women songwriters were among the first to protect their original works by registering their music compositions.Footnote 2 Decades later, in 1905, Clare Kummer became the first woman to solely author and register a musical work with the United States Copyright Office (“USCO”).Footnote 3 Despite these early milestones in women’s authorship, women today remain underrepresented as copyright authors. An analysis of copyright registration data between 1978 and 2012 reveals that two-thirds of registered authors are men.Footnote 4 The gap between authorship by men and women varies by type of work, but the existence of a gap in every work category raises questions about who is benefiting from our copyright system and why women create and register works at lower rates than men do.
Although copyright registration became voluntary in 1978, the USCO has generally continued to process more than 300,000, and often 400,000, registrations each year. Registration is not required for copyright protection, but it entails several advantages. It is a necessary prerequisite for bringing an infringement action for a U.S. work and for receiving statutory damages and attorney’s fees.Footnote 5 It makes it easier for copyright owners to prevent the importation of infringing copies and, if the work is registered within five years of publication, the registration constitutes prima facie evidence of copyright validity and authorship in litigation.Footnote 6 In addition, registration reduces transaction costs and makes it easier for copyright holders to financially benefit from selling or licensing their works.Footnote 7 This is particularly helpful for entrepreneurs seeking legitimacy or an increase in their young company’s selling potential.Footnote 8 These benefits are intended to encourage registration and reward creativity.Footnote 9 But if women are not registering copyrights as frequently as men, do the benefits of registration appeal less to women? Or are there structural, systemic, industry-specific, or other barriers to women’s participation in the copyright system?
These questions are difficult to answer fully, but it is possible that rather than women failing to appreciate the benefits of registration, the gender gap in copyright registrations is in part reflective of more general social realities, including inequitable patterns of property ownership by women as well as persistent inequality within creative industries. Notably, women are underrepresented in ownership of copyrights, trademarks, and patents compared to their share of the U.S. workforce. In 2010, women made up 46.7 percent of the U.S. workforce but received only 33.31 percent of granted trademarks.Footnote 10 Likewise, in 2015, women represented 28 percent of the STEM (science, technology, engineering, and mathematics) workforce, but only 12 percent of the inventors listed on granted patents.Footnote 11 Some creative fields, such as the music industry, have been plagued by allegations of gender bias and accompanying low levels of women participation, underscoring the finding that women registered only 24.02 percent of music copyrights between 1978 and 2012.Footnote 12
One may think that the disparity in intellectual property rights ownership only affects a limited number of artists, entrepreneurs, and scientists. However, intellectual property–intensive industries – industries whose growth is fueled by effective protection of intellectual property rights – accounted for 27.9 million U.S. jobs in 2014 and 38.2 percent of U.S. GDP.Footnote 13 A great deal of economic value is added by effectively protecting intellectual property rights and by promoting creativity and innovation among as many people as possible.
The USCO does not ask registration applicants for their demographic information. While this does not necessarily mean that gender bias could not sometimes play a role when applications are reviewed, it is at least consistent with its mission to promote creativity “for the benefit of all.”Footnote 14 It should be uncontroversial to point out that the quality and breadth of works produced would be better with a diverse and more inclusive set of authors and when barriers to entry are removed.Footnote 15 However, it is clear that either women do not respond to the current copyright system’s set of incentives or, more likely, that the incentives operate in conjunction with social and psychological factorsFootnote 16 to motivate women to create and register certain types of work but not others, and at rates that generally fall below those at which men create and register works.Footnote 17 If the USCO is to properly carry out Congress’ constitutional charge to “promote the Progress of Science and useful Arts,”Footnote 18 then we must understand what is underlying lower rates of creative authorship and subsequent registration by women.
We will seek to address some of these factors by considering the extent to which the gender disparity is or is not merely reflective of gender dynamics in other types of intellectual property holdings. Through a further discussion of patterns of inequality in other forms of property ownership, it will be possible to contextualize gender inequality in intellectual property. This will be further supplemented by a discussion of gender dynamics across different types of creative professions in the hopes of understanding some of the reasons why women may be less likely to author and register creative works in certain industries.Footnote 19
The first section reviews recent data and demonstrates patterns of copyright authorship by men and women that vary over time by work type. The second section reviews recent studies on gendered trends in patent and trademark ownership. Available data suggest that women are underrepresented in every category of intellectual property rights ownership. The third section discusses similar gender-linked differences in other forms of property, such as home and corporate ownership. These data suggest that the gender-based trends in copyright ownership reflect some more general trends of property ownership. The fourth section considers the extent to which copyright registration gender differences by type-of-work category are reflective of gender inequality within creative professions. The fifth section identifies explanations and factors that may contribute to lower rates of authorship by women. We ultimately conclude that it is impossible to rule out, based on available data, the possibility that our copyright system, in conjunction with its related industries, may have a discriminatory effect on women’s incentives to create.
6.1 The Copyright Gender Gap
Drawing on data from the USCO Electronic Catalog (“Catalog”), a study coauthored by one of us (“Study”) was the first to identify demographic patterns of copyright authors.Footnote 20 It reveals a striking degree of imbalance between population demographics and rates of authorship, particularly concerning rates of authorship among men and women. In the surveyed data, men authored an estimated two-thirds of registered works. The degree and nature of the differences between men and women went beyond mere rates of authorship, and have varied over time and across work types, showing that what seems like a gender-neutral system may produce a disparate incentive effect on men and women.Footnote 21
6.1.1 The Data Set and Methodology
The Study analyzed the over 14 million copyrighted works registered with the USCO between 1978 and 2012.Footnote 22 Registration records contain information about the work, such as its title, date of application, publication status, and creative category.Footnote 23 Usefully, the Study converted all work types into six basic categories: text, music, art, movies, drama, and software.Footnote 24
In analyzing gender demographics, the Study focused on works by known, named individual authors.Footnote 25 Registrants are not asked to self-report demographic information in their copyright registration applications. Using gender-related data extracted from the 1990 Census, the Study could assign to authors a probabilistic gender based on their first names.Footnote 26 First names are highly indicative of gender: 82 percent of the authors had a 99 percent or higher likelihood of being either a man or a woman.Footnote 27 Works created by business associations and anonymous and pseudonymous works were excluded from the gender statistics because the author’s gender could not be determined probabilistically.Footnote 28
6.1.2 Key Findings
This study revealed a wide variation in gender parity across time, type of work, and publication rates, among other aspects. Strikingly, in 2012, 64 percent of authors were men.Footnote 29 While this was a decrease from 1978, when 70 percent of the authors were men, it was still well above their labor market share in 2012.Footnote 30 The percentage of women in the labor market increased from 41.7 percent in 1978 to 46.9 percent in 2012, while the share of women authors has only increased from 30 percent in 1978 to 36 percent in 2012.Footnote 31
6.1.2.1 Gender Variation across Work Types
The disparity between authorship rates among men and women has varied across type-of-work categories. Between 1978 and 2012, men registered 88.22 percent of software copyrights and 78.16 percent of movie copyrights.Footnote 32 Both categories have experienced a relative increase in authorship by women over time, but when combined, these categories represent only 2.5 percent of registrations by individuals.Footnote 33 The most significant gains toward gender parity have been made in the text category, which makes up over a third of the individual registrations.Footnote 34 While men were listed as authors for 57.45 percent of all text registrations, the share of women authors increased from 33.98 percent to 45.83 percent between 1978 and 2012. The drama and music categories, which account for 5 percent and 44 percent of individual registrations, respectively, did not experience a significant change in gender parity between 1978 and 2012. Overall, men authored 66.99 percent of all drama registrations and 75.98 percent of all music registrations.Footnote 35 The art category experienced the greatest fluidity between 1978 and 2012, with the percentage of authorship by men decreasing between 1978 and 1984 and rising again by 2012. Art represents 11 percent of individual registrations, with men authoring 54.34 percent of total art registrations and 59.1 percent of art registrations in 2012.Footnote 36
6.1.2.2 Gender Variation in Publication Status
The data suggest that women are more likely to create and register copyrights in categories of work where the work has typically already been published at the time of registration.Footnote 37 In the study, 39 percent of registrations authored by men were published at the time of registration, compared with 44 percent of works authored by women.Footnote 38 However, these statistics are affected partly by the different types of work men and women tend to register. For example, half of all registrations authored by women were in the text category, and within that category, 61 percent of women had published their work by the time it was registered. While men demonstrated a similar propensity to publish textual work before registering it for copyright, text registrations represented only 33 percent of registrations authored by men.Footnote 39 On the other hand, music registrations represented half of the registrations authored by men, and this category only had a 22 percent prior-publication rate for men. Women, in contrast, had a 15 percent prior-publication rate for music registrations, but music registrations only made up 29 percent of women-authored registrations.Footnote 40 In the software and art categories, women were more likely to publish their work before registration than men, but in the drama category, men and women had equal publication rates.Footnote 41
6.1.2.3 Gender Variation in Age and Coauthorship
The Study concluded by examining coauthorship patterns and author age differences by gender and work type. First, in comparing registrations with more than one author listed, the Study found that authors generally worked with coauthors of the same gender. Conditional on one of the authors being a man, there was about an 80 percent chance that the other author was also a man. Conditional on one of the authors being a woman, there was about a 50 percent chance that the other author was also a woman. If authors had picked their coauthors randomly and neutrally, we would expect these statistics to have been about 71 percent and 29 percent.Footnote 42 Men and women, therefore, show a clear tendency to collaborate with same-gendered coauthors.
While there was some variation in age demographics between men and women, the difference in size was dependent on the type of work registered.Footnote 43 For example, women authors of registered works were on average one year older than men in the movie category, two years older in the music category, and three years older in the software category. On the other hand, women were generally a year or less younger than men in the text, drama, and art categories.Footnote 44
6.2 Patent and Trademark Ownership
The gender disparity in copyright registration is mirrored in both patent and trademark ownership. The degree of disparity varies for patents and trademarks, but in both cases, women are underrepresented compared with men. Women submit fewer applications than men and have fewer patents granted.Footnote 45 Focusing strictly on metrics drawn from the intellectual property system obscures the factors and events that precede a patent or trademark application. Rather than indicating a lack of ability, creativity, or interest, lower numbers of applications and grants are likely indicative of barriers to full access to and participation in the system by women. The existence of such barriers, particularly among women applying for patents, has been confirmed by researchers seeking to understand the behavior of women prior to and after securing intellectual property rights. Considered in conjunction with copyright registration, there may be systemic barriers within the intellectual property system hindering women.
Similar to copyright registration data, studies have indicated that gender disparity in patent and trademark ownership varies widely by the subcategory, or class, into which the particular patent or trademark falls. Some of these distinctions can be justified by gendered patterns of educational attainment, but additional factors suggest something other than education is disincentivizing or preventing women from seeking intellectual property rights ownership within their fields. As with copyrights, some studies on patent ownership have also indicated that women have different collaboration patterns than men and are very unlikely to patent an invention as a sole inventor.
Like the USCO, the U.S. Patent and Trademark Office (USPTO) does not record demographic information for its applicants. Therefore, the data provided later in the chapter is based on studies that used a similar procedure of matching the first names of listed owners with their likely gender using U.S. Census data.
6.2.1 The Patent Gender Gap
In 1977, only 2.6 percent of granted U.S. patents listed at least one woman as an inventor.Footnote 46 More recently, in 2016, women were listed on 21 percent of granted patents.Footnote 47 However, this remains below women’s share of the STEM labor force.Footnote 48 Furthermore, the total inventor rate – that is, the percentage of all inventors listed on granted patents who are women – has only increased from 10 percent in 2000 to 12 percent in 2015.Footnote 49 If we disaggregate some of these patent statistics, we find that the degree of gender disparity varies widely over time and by scientific field. For example, while some fields, such as life sciences, have achieved near gender parity, other fields, such as engineering, have remained vastly disproportionate.Footnote 50 This trend is reflected in STEM educational data, labor force makeup, and patent statistics.
Unlike trademarks and copyrights, the expertise required to invent something patentable would often necessitate some formal education or expertise in STEM, a high level of education, or at least a background in STEM.Footnote 51 As a result, gender disparities in a degree program at both the undergraduate and graduate levels may explain part of the gender disparity in patent rates.Footnote 52 For example, one study has argued that individuals with mechanical and electrical engineering degrees produce more patents than most other STEM degrees, but women have historically received less than 10 percent of the mechanical and electrical engineering degrees awarded to men. Because individuals with these STEM degrees have a high likelihood of patenting compared to other degree programs, a lack of women in the degree program could affect the disparity in overall patent rates between men and women.Footnote 53 On the other hand, women have been more proportionally represented in biological and physical science degree programs, and in 2015, women represented 48 percent of biological and life scientists. These STEM degrees are much less likely than mechanical and electrical engineering to lead to patent activity, but while men and women are nearly equally employed as biological and life scientists, in 2015, only 25 percent of the inventors for biotechnology patents and 23 percent of inventors for pharmaceutical patents were women, suggesting educational attainment alone does not determine patent rates.Footnote 54
6.2.1.1 Level of Gender Equality Varies by Workplace Type
Granted patents are often assigned to an employer, and by looking at assignment data, it is possible to draw conclusions about the types of work environments that either attract more women or perhaps place greater emphasis on gender equality. Between 2007 and 2016, nearly 20 percent of the inventors listed on patents assigned to universities or hospitals were women. This was followed closely by public research organizations, where 15 percent of listed patent inventors were women. These two sectors have shown the largest and most continued improvement in the share of female inventors. Between 2007 and 2016, among individual-owned patents, just under 15 percent of inventors were women.Footnote 55 Only 12 percent of the inventors listed on patents assigned to private companies were women.Footnote 56
These data support a couple of propositions. First, these statistics suggest that women are much less likely than men to individually develop and patent a new invention.Footnote 57 Second, these data support studies that concluded that women might be more likely to patent while working for academic institutions or public companies than for private companies.Footnote 58 This could be tied to the organizational structure of most private companiesFootnote 59 or could be reflective of the private sector’s difficulties in retaining women in STEM roles.Footnote 60
6.2.1.2 Patterns of Coauthorship
Several studies have found that women are more likely to work with coinventors than to apply for patents by themselves. Most often, patent teams with women have two to five total inventors. While larger teams are becoming more common overall, teams with women on them are much more likely to include four or more inventors than teams of only men.Footnote 61
While women are more likely than men to collaborate with coinventors, they are unlikely to work as part of an all-women team. Between 2007 and 2016, only 4 percent of patents had only women listed as inventors.Footnote 62 Furthermore, patents with only women listed as inventors are cited less frequently than mixed-gender and men-only patent inventor teams.Footnote 63 However, mixed-gender teams are cited more frequently in later patent applications than men-only and women-only teams, which may be indicative of either the relative value of average patents produced by diverse, mixed-gender teams or the added value of large teams of inventors.Footnote 64
6.2.1.3 Gender-Linked Behavioral Differences in Patent Applications
There are several differences between men and women during and immediately after the patent application process. First, all-women teams may be subject to gender bias or discrimination by patent examiners. One study found that for all-women teams of inventors that submitted patent applications, inventors with “common” names for women were 8.2 percent less likely to have their patent applications approved than all-men teams.Footnote 65 The magnitude of this effect decreased when women inventors had “rare” names that might not be socially connected to either gender.Footnote 66 All-women teams are also less likely to appeal rejected patent applications and less likely to have their patents maintained by their assignee than mixed-gender or all-men teams.Footnote 67 Second, women are less likely to commercialize their patents, resulting in less monetary gain from their patenting activity.Footnote 68 This is a reflection of both having women as inventors and some of the fields they specialize in. For example, while women are well-represented in life sciences, only 39 percent of life sciences patents are commercialized.Footnote 69
6.2.1.4 Explanations
Ultimately, only part of the patent gap is likely linked to the absence of women in STEM.Footnote 70 The lack of gender equality in patent-intensive fields such as engineering may disproportionately affect the patent gender gap.Footnote 71 However, even in areas of STEM where women are well-represented, they still do not patent at the same rates as men. This is particularly clear in academia, where men and women have been shown to publish similar-quality papers at similar rates. Still, men remain much more likely to patent than women.Footnote 72
Another potential problem could be the cost and complexity of the patent application process. Applying for and maintaining a patent could cost upwards of tens of thousands of dollars, and due to historical exclusion from STEM, women may not have the connections to the patent industry that men have.Footnote 73 These connections both with the patent industry and within STEM fields may be important resources for individuals to gain valuable expertise and insight into whether or not they should apply for a patent and what that process entails.Footnote 74
There are also several ways in which women applying for a patent may face some degree of discrimination. While progress has been made in recent decades, some women still report encountering either implicit bias or sexist behavior in STEM workplaces. While it is unclear how widespread these kinds of experiences may be, they may lead women to leave their jobs in STEM more frequently than men and steer women away from patent activity.Footnote 75 Even in academia, researchers have found that some science faculty may be implicitly biased against women. In a study where researchers submitted identical resumés for a lab manager position, both men and women STEM faculty members rated the resumé with a common name for a man as more qualified and offered a higher starting salary than the resumé with a common name for a woman.Footnote 76 In addition, data suggest that examiners at the USPTO show gender bias in processing applications.Footnote 77
6.2.2 The Trademark Gender Gap
Unlike patents, there has been relatively little research done on women’s trademark ownership. Still, available data suggest a similar gap exists between the number of men and women who own trademarks, although there are signs of greater equality over time. In 1980, women received 16.7 percent of trademarks granted, and by 2010 they still received only 33.31 percent.Footnote 78 Unlike patents, no set of educational indicators is associated with people who will apply for a trademark. Trademarks have occasionally been connected to entrepreneurial activity, but a 2015 survey conducted by the U.S. Census Bureau found only a marginal difference in the share of women-owned businesses with a trademark compared with men-owned businesses.Footnote 79 That being said, women as a whole are less likely to become entrepreneurs, and in that study, only 20.8 percent of the surveyed businesses were women-owned.Footnote 80
Like copyright and patent rates, women appear to specialize in different areas than men. In 2010, women were granted the most trademarks in the following classes: advertising and business, clothing, education and entertainment, and paper goods and printed matter.Footnote 81 While these categories were among the most frequently used trademark classes between 2004 and 2013, notably missing are the electrical and scientific apparatus and computer and scientific classes, the first and fourth most-used classes in that period.Footnote 82
Interestingly, women’s trademark applications were accepted more frequently than applications by men between 1988 and 2000. However, the ratio of successful trademark applications made by women and men has been nearly equal since 2000.Footnote 83 Therefore, women are likely underrepresented as trademark owners due to a lack of applications compared with men. There has not been much research done on why women file fewer applications than men. But one study has suggested that women may be hesitant to apply for trademarks due to a lack of knowledge about how they work and uncertainty about the financial value of obtaining a trademark.Footnote 84
6.3 Gender Trends across Property Ownership
While some factors and explanations are specific to intellectual property rights ownership, the disparity between men and women in the intellectual property rights context is consistent with more general inequities in other forms of property ownership and corporate power. Therefore, to fully understand lower rates of intellectual property rights ownership by women, it is necessary to contextualize our findings within the broader scheme of property ownership and wealth accumulation. In their lifetimes, women are more likely to experience poverty,Footnote 85 receive social welfare benefits,Footnote 86 and retire with few if any retirement savings compared with men.Footnote 87 Women on average make less than men for the same job, even in industries where women predominate, perpetuating both a wage and a wealth gap between men and women.Footnote 88 Despite making up half of the U.S. labor force, women represent only 5.8 percent of its CEOs.Footnote 89 A thorough exploration of gender inequality is beyond the scope of this chapter, but understanding some of the forms of inequality that affect property ownership and wealth accumulation will allow us to contextualize and explain some of the gender differences in the copyright registration data.
6.3.1 Gender Disparity in Property Ownership and Wealth Accumulation
6.3.1.1 Wage Gap and Wealth Gap
Women across the country are compensated less than men for their labor, and this disparity ultimately contributes to a lifetime wealth gap. In 2019, women on average earned 81.5 cents for every dollar earned by a man with the same job.Footnote 90 This gap has been more pronounced in occupations commonly held by men. For example, several professions with men in the majority have paid women only 70–75 percent of what they pay men for the same job.Footnote 91 In addition to varying across professions, the wage gap has also varied by geography, with women in 2013 earning between 67.3 percent and 87.6 percent of what men made based on their state.Footnote 92 One estimate suggests that the gender wage gap will not be closed in some states until after 2100.Footnote 93
The perpetuation of this wage gap contributes to women experiencing higher levels of poverty than men and is one large contributor to the wealth gap between men and women. In addition to base wage differences, women are twice as likely to be part-time workers, constitute the majority of minimum-wage and low-wage workers, and typically have more caregiving responsibilities than men, all of which can limit their ability to save for the future and accumulate wealth at the same rate as men.Footnote 94 Some studies have also found that women are more risk-averse in terms of taking financial risks, which may contribute to lower rates of wealth accumulation.Footnote 95 As a result of all of these factors, women are disproportionately unprepared for retirement compared with men.Footnote 96
6.3.1.2 Welfare Benefits
Correlated with the wage and wealth gap, women are more likely to receive welfare benefits than men. In 2018, women were more likely to experience poverty than men in every age category after turning eighteen.Footnote 97 In 2012, 23.3 percent of women in the United States received some form of welfare benefits compared with 19.3 percent of men. The statistics were starker for single mothers. In 2012, 58 percent of “female-householder families” received welfare benefits compared with 37.2 percent of “male-householder families” and 19.9 percent of married couples.Footnote 98 These statistics have varied by education level and geography, but women in the South and parts of the Western United States with less than a college-level education as a whole have had a high likelihood of experiencing poverty.Footnote 99 A variety of factors contribute to these bleak statistics the wage gap, and increased likelihood for women to be in low-paying or part-time jobs compared with men are among the most prominent.Footnote 100
6.3.1.3 Home Ownership
Home equity is the largest source of wealth for U.S. households, followed by business ownership, and this is one of the few areas in which women outperform men by some measures.Footnote 101 Since the 1990s, single women have owned more homes than single men.Footnote 102 In 2017, single women owned 22 percent of available homes in the United States, while single men owned only 13 percent.Footnote 103 However, most homes are still owned by married couples, and as soon as additional family members are added to the household, home-ownership rates by single women rapidly decrease compared with men.Footnote 104 Furthermore, despite owning more homes as a group, a recent study has suggested that women can still end up worse off than men because, on average, they buy their home for 2 percent more and sell it for 2 percent less than similarly positioned men.Footnote 105 As the dominant form of savings for many households, the disparity in purchasing and selling prices over time likely contributes to the wealth gap between men and women.Footnote 106
6.3.2 Entrepreneurial Success and Corporate Power
6.3.2.1 Women’s Entrepreneurship
Entrepreneurial activity among women and various forms of corporate ownership are related, contributing factors to property ownership and wealth accumulation. In 2012, women-owned businesses accounted for only 36 percent of U.S. businesses and earned, on average, only 22.5 percent of what men-owned businesses made.Footnote 107 Revenue differences varied widely by sector. In some industries such as arts/entertainment and scientific services, women-owned businesses made under 40 percent of the revenue of men-owned businesses. Notably, 93.7 percent of women-owned businesses were in either a service or retail industry. But the combined revenue of women-owned businesses in retail made only 13.5 percent of the revenue earned by men-owned retail businesses.Footnote 108
Part of the financial disparity between entrepreneurship by men and women is tied to a lack of funding for women-owned businesses. Men are much more likely to receive venture capital than women, and even when women receive venture capital, they receive smaller investments than men.Footnote 109 Some studies have found that this may be caused at least in part by investors evaluating women-proposed projects differently than projects proposed by men. In a study of a top venture capital pitching competition, researchers found that women were more likely to be asked how they would avoid business failure while men were more likely to be asked how they expected to maximize profits.Footnote 110 While this may seem just a difference in semantics, this type of failure-avoidance questioning was associated with projects receiving less or no funding compared with comparably positioned companies that were asked about profit maximization.Footnote 111 Another part of the funding problem is a lack of women in top venture capital firms, as only 8 percent of global venture capital partners are women. Venture capital firms with women partners have been shown to be more likely to invest in women-owned companies than firms without women partners.Footnote 112 Still, to a lesser extent, the gap in venture capital funding may also be connected to women being less likely to own intellectual property rights than men, as some studies have found that new companies with a patent receive venture capital much more quickly than others.Footnote 113
Women, however, may be less inclined than men to start their own businesses. One study found that in 2013, 11 percent of working women were running or starting their own business compared with 16 percent of men, but it is difficult to say whether this is indicative of a preference among women or a consequence of other barriers to women’s entrepreneurship.Footnote 114 For example, in a survey of successful men and women entrepreneurs, women were much more likely to believe that having a robust professional network and prior experience as an entrepreneur is crucial for entrepreneurial success and securing outside funding.Footnote 115
6.3.2.2 Corporate Ownership and Positions of Power
In December 2019, out of the S&P 500 companies, only twenty-nine (5.8 percent) company CEOs were women.Footnote 116 In a study of equity ownership in companies and C-suite executives, women on average owned forty-nine cents in equity for every dollar owned by a man.Footnote 117 While these dynamics are often reflective of individuals at the very top percentiles of income and success, they reinforce the conclusion that gendered wealth disparity permeates every income bracket. At a high level, of the companies surveyed, women represented 34 percent of the employees but held only 20 percent of the companies’ combined equity value. Part of the problem is that there are not as many women involved in the early stages of start-ups when it is more likely for the company to grow immensely and for early employees to be awarded considerable equity.Footnote 118
Another problem is the lack of women in C-suite positions. As people are promoted, firms that start with relatively equal numbers of men and women shift to become majority men. By the time people are promoted to a C-suite position, men predominate.Footnote 119 These dynamics are also reflected in company board demographics. Among Fortune 500 companies, only 22.5 percent of board positions were filled by women in 2018,Footnote 120 representing an improvement from 2004 when it was only 15.7 percent.Footnote 121
6.4 Gender Disparity in Creative Professions
While professional participation in a creative industry is not a prerequisite for creating or registering copyrightable material, gender-based inequities and discrimination within creative industries may contribute to lower rates of creation and registration of works by women. As a general rule, creating a copyrighted work of authorship does not necessitate a formal, educational, technical, or professional skill or training at the level that creating a patented invention often does. With a lower barrier to entry than STEM fields, one may expect creative industries to be more equally representative of both men and women, and in some ways, they are. However, many creative industries still struggle with a lack of women in positions of leadership, as well as allegations of implicit gender bias or outright gender-based discrimination. If these conditions create additional professional and social barriers to entry for women, then that may explain some of the gender disparity in the rates of copyright registration.
Available studies are overly dependent on understanding gender by looking at finished work products, such as released movies, top-played songs, and plays selected for performance. Therefore, it is difficult to gauge gender disparities at levels below the tip of the success iceberg or at supporting roles – such as editors in the book publishing industry or artists who are not yet prominent enough to be featured in a museum. That being said, broadly discussing gender dynamics within creative professions provides useful perspectives for understanding why some women may be disinclined or unable to create in certain fields.
6.4.1 Book Industry
Women have traditionally been in the majority at every stage of book publishing.Footnote 122 In 2012, roughly 55.6 percent of self-reported writers or authors were women.Footnote 123 That same year, 52.3 percent of periodical, book, and directory publishers were women as well.Footnote 124 Nevertheless, despite authors being majority women, the majority of authors (54.17 percent) of registered textual works in 2012 were men.Footnote 125
While women for all purposes appear to be in the majority representation-wise, there are a set of gendered patterns that may discourage women authors or otherwise act to decrease the representation of women within the industry. First, although women are overrepresented in the publishing industry, some of the largest publishing houses do not publish books written by women at the same rate as they publish books written by men.Footnote 126 One study found that out of thirteen publishing houses, only two had more than 30 percent of their published books authored by women.Footnote 127 With over 50 percent of self-reported authors being women, it is difficult to argue that this unequal representation in publishing houses is due to women’s lack of interest or ability.
Even when women’s books are published, on average, they sell for less, and their publishers invest less in their promotion compared with books written by men.Footnote 128 As a result, women profit less from their textual creativity than men. Furthermore, books written by women are comparatively less likely to be reviewed in magazines.Footnote 129 Men also have historically had a greater likelihood of having their books appear on The New York Times’ bestseller list.Footnote 130 While these statistics could be tied to lower numbers of books written by women being published in the first place, book reviewers have also predominantly been men.Footnote 131 With this background, it is perhaps unsurprising that women may not be encouraged to write and register their work as much as men.
6.4.2 Music Industry
The music industry has long struggled with a lack of women both as performers and in music production. In 2018, 35 percent of self-reported musicians and singers and only 12.4 percent of broadcast and sound engineers were women.Footnote 132 This represented an improvement for the industry from 2010 when only 31.9 percent of musicians and singers and 9.9 percent of broadcast and sound engineers were women.Footnote 133 However, despite these improvements, women remain underrepresented as musical artists and in music production. In a study of representation on the Billboard Hot 100 Year-End Charts between 2012 and 2019, only 21.7 percent of artists, 12.5 percent of songwriters, and 2.6 percent of producers were women.Footnote 134 This disparity varies by genre, with women in pop representing 32.6 percent of artists but only 11 percent of artists in alternative music.Footnote 135 This lack of representation is reinforced in awards show nominations. Between 2013 and 2020, 88.3 percent of Grammy Award nominees were men, though the number of women nominees has been trending upward over time.Footnote 136
While it is unclear whether this is a cause or an effect, the music industry has been plagued by allegations of gender-based discrimination.Footnote 137 In one study that surveyed women in different parts of the music industry, 78 percent of respondents reported that they had been treated differently due to their gender.Footnote 138 In another study, women reported that their colleagues did not take them seriously and that their contributions both as producers and performers were not seen by their colleagues as important or valuable.Footnote 139 While these barriers would not necessarily prevent a self-recording artist from creating and registering new work, they may be part of why men authored 75.98 percent of copyright registrations in the music category.Footnote 140
6.4.3 Film Industry
Men hold the vast majority of roles in the film industry. In 2010, women represented only 7 percent of directors, 2 percent of cinematographers, and 15 percent of executive producers for the top 250 grossing films of the year.Footnote 141 By 2019, these numbers have improved, though there is still a way to go. Of the top 250 grossing films of 2019, women represented 13 percent of directors, 5 percent of cinematographers, and 23 percent of executive producers.Footnote 142 This inequality is mirrored among film actors and actresses as well. In 2010, only 30 of the top 100 movies for the year featured a woman as a lead or colead. By 2019, this had increased to 43 out of the top 100 movies.Footnote 143 However, for actresses, this inequality does not appear to be tied to a lack of interest. One of the most popular college majors for professional actors and actresses is visual and performing arts, and in 2017, women received 60.1 percent of visual and performing arts bachelor’s degrees.Footnote 144 The lack of gender representation goes all the way up to the top of movie studio leadership, with one study finding that 82 percent of chief executives for some of the country’s largest movie studios are men.Footnote 145
While it is unclear whether some women choose to steer clear of the film industry or whether the industry as a whole creates additional barriers to entry for women, the film industry has faced allegations of gender-based discrimination for years.Footnote 146 Actresses have often been paid less for their creative labor than their costars, underscoring the finding that in a list of the top ten highest-paid actors and actresses for 2019, only two out of the top ten were women.Footnote 147 In addition, stories about men refusing to work with women directors and women’s contributions behind the scenes being challenged by their coworkers suggest that there may be social barriers that could discourage women from entering or remaining in the film industry.Footnote 148
6.4.4 Theatre Industry
Like the film industry, men predominate in almost every role, both on stage and behind the scenes for theatrical works. In a study of theatrical productions on Broadway between 2018 and 2019, 13 percent of directors, 24 percent of choreographers, 13 percent of writers, and 32 percent of named characters were women.Footnote 149 However, women are in the majority or close to the majority as costume designers (52 percent), stage managers (47 percent), and company managers (57 percent).Footnote 150 These trends have been mirrored in Off-Broadway productions as well. In 2010, 25 percent of directors and 31 percent of playwrights were women.Footnote 151 Notably, some theaters have had years where they did not feature a single play written by a woman, and in the 2013–14 season, women wrote only 29 percent of the plays produced in Off-Broadway theaters.Footnote 152
Women playwrights may be particularly discouraged from writing because their lack of exposure and access to theaters is a nationwide problem.Footnote 153 Between 2011 and 2014, a study of 153 theaters across the United States found that women wrote only 22 percent of the plays produced despite making up around two-thirds of theater audiences.Footnote 154 While some of this disparity may be tied to theaters relying on a certain number of revived productions year to year, men also hold an estimated 80 percent of artistic director positions in regional theater companies, and these individuals often have the greatest influence on the plays that are selected.Footnote 155 The data may however suggest a relative female inclination toward originality: While men wrote 84 percent of the revivals produced in 2016–17, women wrote 35 percent of the “new” plays produced that year.Footnote 156
6.4.5 Other Copyright-Related Industries: Art, Dance, and Architecture
Despite making up roughly 46 percent of artists in the United States between 2012 and 2016, women in the arts are not given the same opportunities as men and are compensated less for their work.Footnote 157 While this statistic suggests that men and women have a roughly equal interest in the arts, works produced by men constituted 87 percent of U.S. museum collections in 2018.Footnote 158 While 51 percent of visual artists in recent years have been women, women have received only 27 percent of solo exhibitions between 2013 and 2020.Footnote 159 This lack of exposure in museums is effected partly by women being underrepresented in art markets and fairs around the world, as well as by potential bias within museum leadership.Footnote 160
Part of the earnings gap may be tied to differences in occupation selection. For example, between 2012 and 2016, women represented 81.4 percent of dancers and choreographers but only 25 percent of architects.Footnote 161 While architects in this period made, on average, US$76,680 per year, dancers and choreographers made only US$31,150.Footnote 162 Even within the same field, women are still paid less than men. One study found that women across art professions make around US$20,000 less per year than men in the same field.Footnote 163 In addition to their undercompensated labor, women’s art is not valued as highly as art produced by men. In the fine art industry, one study found that, on average, women’s artwork sells at auction for 47.6 percent less than artwork created by men.Footnote 164 To put this into perspective, between 2008 and the first half of 2019, US$196.6 billion was spent at international art auctions, and only 2 percent of this figure, US$4 billion, was spent on works created by women.Footnote 165 Works by just five women accounted for US$1.6 billion of the total US$4 billion spent on women artists.Footnote 166 Part of the problem with women’s art valuation is that rather than comparing works by women with art produced by both men and women, it may be common in the industry to compare art prices only to works created by other women artists, which may lead to lower price growth and valuation over time.Footnote 167
6.5 Taking Stock
Gender inequality is pervasive across different sectors and industries, but while some explanations for inequality are fact-, sector-, or industry-specific, there are several takeaways from inequality in intellectual property, property, and creative professions that may inform our understanding of why more men than women register copyrights. These explanations, in turn, can form the basis for a broader examination of the U.S. copyright system and ultimately support a conclusion that the copyright system and related industries might be associated with a discriminatory effect on women.
As a wealth of intellectual property scholarship demonstrates, women are underrepresented across patent, trademark, and copyright ownership. This disparity may be due partly to a lack of institutional support, and higher barriers to entry for women.Footnote 168 While trademark ownership remains under-researched, researchers have found that the concentration of women in STEM fields is correlated in part with the number of patents granted to women inventors.Footnote 169 This suggests that a lack of women in a given field impacts the percentage of intellectual property rights awarded to women. Furthermore, while patentable material may sometimes necessitate larger team sizes than copyrightable material, research has suggested that women are much more likely to work with coinventors than men and often work with one to four coinventors.Footnote 170 Finally, some studies have indicated that patent examiners may be biased against women applicants if the applicant has a name that is socially construed as a woman’s name.Footnote 171
On a broader level, women are less likely than men to engage in entrepreneurial activity, which may affect the likelihood of women investing the time and resources necessary to secure intellectual property rights.Footnote 172 This trend is partly driven by women generally having less access than men to venture capital funding.Footnote 173 It may also be partially explained by either risk aversion among women or higher perceived barriers to entry, such as lacking prior experience or robust professional networks.Footnote 174 In addition, with women on average experiencing higher poverty rates than menFootnote 175 and earning less for their labor, women are likely rewarded less for their creative labor than men if they are working as full-time artists or creatives.Footnote 176 Furthermore, as studies on the gender makeup of venture capital firms have indicated, when there are women in leadership positions, firms are more likely to support women-owned start-ups.Footnote 177 This may indicate that a lack of women in positions of power in creative industries could, in some cases, lead to fewer opportunities for women within those industries.
Finally, our exploration of gender dynamics within several creative industries revealed widespread inequality between men and women as well as potential gender-based discrimination. While copyright registrants may not all work professionally in a creative field, the extent to which their creativity is encouraged by the larger industry may affect how much a registrant can expect to profit from their work and whether they continue to create new works.
6.5.1 Inequality or Discrimination?
Given the undeniable disparity between authorship rates among men and women, the question remains whether this difference is tied to existing forms of inequality between men and women or whether women register works at lower rates than men due to gender-based discrimination.
6.5.1.1 Inequality
As suggested in the preceding sections, gender inequality is pervasive and touches almost every component of participation in creative industries. With a wealth gap between men and women and higher poverty rates among women, the gap in women’s ownership of copyright registrations is consistent with more general social patterns of inequality in property ownership by women. While registering a copyright is not as large of a financial burden as applying for a patent, some women may lack networks that promote knowledge or encourage or promote the value of obtaining copyrights, which studies have found to be important for trademarks and patents as well.Footnote 178 Part of the gap in registration rates is also likely a reflection of existing inequality within creative professions, which would be consistent with studies on patent frequency that have suggested that the number of women inventors increases as the proportion of women in STEM fields increases.Footnote 179 Even though several creative industries are achieving greater levels of gender parity, in some cases, women still have to overcome past inequality that may continue to discourage their creativity.Footnote 180
Women also may be disinclined to create and register their works because they continue to be compensated less for their work than men. This may even deter some women from pursuing a creative profession, knowing they have a smaller likelihood of success in some industries. And even if they become successful, they may not be compensated as much as similarly positioned men.Footnote 181
6.5.1.2 Discrimination
While an unknown portion of the disparity in registration rates between men and women is likely tied to existing forms of inequality, women face additional barriers to full participation in the copyright system both within their fields as well as within the copyright system itself. Some portion of the gender imbalance in creative professions may be tied to women self-selecting certain fields in greater numbers than men. However, when women do not have the same opportunities to be published authors,Footnote 182 have their plays produced,Footnote 183 or have their artwork shown in a gallery,Footnote 184 it is difficult to argue that creative professions are free from some degree of gender-based discrimination that may discourage some women from creative authorship.
Despite purporting to incentivize original works of authorship by all, regardless of gender, the current copyright system does not protect forms of creative expression that have traditionally been associated with women. For example, recipes, fashion designs, and sewing and knitting patterns have traditionally received little or no copyright protection.Footnote 185 Women traditionally dominated these industries, and many had a communal aspect whereby multiple women would collaborate and build off of each other’s creativity.Footnote 186 Their exclusion may suggest that women’s creative expression is not valued as highly as men’s in terms of being perceived as a form of creativity that needs, and is worth, incentivizing. At the same time, including these fields and forms of creativity may either change the communal aspect of these industries by enforcing individual claims of authorship or entail substantial changes to the law of copyright, such as a revision of the nature of the originality requirement.Footnote 187
The copyright system may have a discriminatory effect on women due to its requirement that to become a coauthor, one must make an independently copyrightable contribution to the joint work. This standard is reflected in case law,Footnote 188 as well as in the USCO’s definition of coauthorship.Footnote 189 This requirement for coauthorship may have a disparate impact on women who prefer to work collaboratively or operate in fields that involve communal creativity because multiple individuals may make important contributions that are nevertheless not independently copyrightable. Creative expression does “not occur in splendid isolation,” yet the creative contributions of individuals go unrewarded when their contributions do not qualify them as “authors.”Footnote 190 Between 1976 and 2012, only 14.2 percent of copyright registrations had multiple authors.Footnote 191 Yet, from research on patent behavior among womenFootnote 192 as well as an understanding of traditional forms of creativity among women, we know that some women may be inclined toward collaborative creative expression.Footnote 193 While the “independently copyrightable contribution” standard emerged from Professor Paul Goldstein and was subsequently adopted by case law, it is possible that Professor David Nimmer’s alternative standard for coauthorship – one that merely requires each coauthor’s contribution to be more than de-minimis – would better incentivize women’s creativity.Footnote 194 Finally, at least one study has indicated that officers within the patent system may be biased against applicants with names commonly associated with women; it might not be unfounded to surmise that there could be a similar effect within the copyright system.Footnote 195
Conclusion
When women make up roughly 50 percent of the U.S. population but only one-third of the authors of registered works, it is necessary to understand why women do not create and register works at the same rates as men. Unfortunately, this gender disparity is not unique to copyright registrants. Women are less likely to own trademarks and are less likely to apply for patents than men. This is consistent with larger and more general trends in property ownership. Women as a whole are much less likely to achieve the same level of financial success as men due in part to persistent wealth and wage gaps. This disparity in the financial payoff is just one aspect of existing forms of gender-based inequality in many creative industries.
It is likely not feasible for the copyright system to fully mitigate the impact of gender disparity within creative professions. However, understanding some of the factors that may discourage creativity, participation, and copyright registration among women is a crucial first step for determining how to encourage creativity moving forward. Despite encountering additional barriers inside and outside the copyright system, women have persisted as successful authors, playwrights, musicians, and artists. But if all or even some of the additional barriers were removed, the increased creative output among women could be even more remarkable and work to society’s benefit.
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