I am not against interpretation. But what courts recognize as legitimate interpretation, it turns out, has predictable sexual and gendered components– to be a “public woman” is a far different thing than to be a “public man,” just as a “streetwalker” is different from a “man in the street.” Thus, in Leibovitz, a woman’s proud celebration of her pregnant body necessarily invited negative commentary from passersby. We already know that Barbie is sexual, says Judge Kozinski, so her proprietors have no right to complain when someone makes that more explicit. An unchaste doll cannot be raped.
Of course, a plastic doll cannot be raped, chaste or not. Bodies are funny, sex is funny, and anyone who deals in bodies can expect some rude surprises. But in a culture full of disputes over sexuality and gender norms, it should be no surprise that our copyright cases are not exempt from those battles and that women in particular may find themselves mocked mercilessly or exposed beyond what they were willing to reveal.
Rebecca Tushnet (“My Fair Ladies: Sex, Gender, and Fair Use in Copyright,” 293)