By Matthew Fredrickson
With the musical Priscilla Queen of the Desert’s 2013 national tour, Kinky Boots winning six Tony awards this past June, and the sixth season of RuPaul’s Drag Race scheduled for early 2014, the art of drag and, most notably, drag queens are becoming a fixture in popular culture. The San Francisco Chronicle quoted one drag performer as saying, “drag has never been more mainstream.” But what legal obstacles can this unique art form expect? Copyright and personality laws may present issues. And, as one gallery in Atlanta recently demonstrated, drag queens might also encounter censorship.
Merriam-Webster defines drag queens as simply men who dress as women to entertain others. But a drag queen is so much more—a drag queen is an artist. First, as Emily Moorhouse says in a recent Sun Sentinel article, “impersonating a female involves serious cosmetic stunts that are…not only practical but fabulous tricks and techniques.” She goes on to detail the challenges “of turning a male face into something fabulously female” and concludes, “[C]oating and manipulating your God-given mug into something more fabulous becomes an art.” However, the artist’s job is not finished when the illusion is created—he has to put together a performance. As drag performer Stevie Zar told Posture, to “stay visible” on the drag art scene requires constant inspiration, experimentation, and collaboration with others to construct a show. With the facial hair masked and the newest dance steps memorized, a drag queen is not just a man dressed as a woman but an artist who has created a work for stage or screen.
Now enter the law, stage left. Many drag queens lip-sync to popular songs by other artists, sometimes while costumed to look like said artist. These artistic techniques may raise issues of copyright and publicity. In 2011, Queety, a gay-oriented online magazine, expressed concern that Congress may soon attack drag queens that perform copyrighted material. With 17 U.S.C. § 102, Congress grants musical works copyright protection, making copyright laws a potential obstacle for performers who use another’s musical work. Drag queens that adopt another artist’s likeness may also be liable under state publicity rights. Publicity rights protect a person’s interest in his or her image and are unique to each state. Most states do not have such laws, but states known for their entertainment industries, like New York and California, do (See “The Right of Publicity”). Therefore, though these rights, as well as copyright laws, are not directly aimed at drag queens, they might burden drag expression if enforced.
In addition to these obstacles, a new problem has appeared that may potentially interfere with the art of drag: censorship. Since drag queens are essentially transformed male bodies (as Huffington Post’s Matthew Terrell explains more colorfully), they risk being too risqué for public consumption. This risk was keenly felt when Atlanta-based Gallery 1526 censored three photographs of drag queens preparing and performing in its “Legendary Children” exhibit this past September. Though the censorship seemed silly, as Terrell rightly notes, it was legal. In Denver Area Educational Telecommunications Consortium, Inc. v. F.C.C., the United States Supreme Court recognized that the freedom of speech “does not itself throw into constitutional doubt the decisions of private citizens to permit, or to restrict, speech.” Though stemming from continued social stigma, censorship is nevertheless an obstacle to expression that our constitutional jurisprudence explicitly condones. Unlike copyright and publicity laws, which provide protection, this exception to the freedom of speech eliminates a protection. As an expressive art form primarily confined to private performance venues, these legal parameters allow for yet another important limitation on drag expression.
As drag art becomes more pervasive in modern culture, legal obstacles may be growing in response. Of course, if this art form were completely without controversy, it would lose what makes it unique. As Terrell notes, “[d]rag stands as an affront to rigid, traditional notions of sexuality and identity.” Perhaps it is by facing these legal obstacles that drag as an art form can maintain its social relevance and power. Perhaps fabulous is fabulous because it will survive the attack.
Washington Journal of Law, Technology & Arts 