Bear Becomes Mushroom; Trout Implicated

So the picture on the left of a girl leaning against a bear is an image that appears on merchandise produced by independent artist Hidden Eloise; and the picture on the right of the same girl in the same pose, leaning against empty air in the vague vicinity of a giant mushroom, is an image that appears, more recently, on merchandise produced by the British stationery company Paperchase.

original and copy

In Thoreau’s words: “Some circumstantial evidence is very strong, as when you find a trout in the milk.”

Without IP laws, what would prevent this blatant appropriation of artists’ ideas?

Oh, wait. Britain has IP laws, doesn’t it? So what’s gone wrong?

Well, apparently Paperchase has been ignoring Eloise’s complaints, and she hasn’t felt prepared to lay out the thousands in court costs needed to pursue legal remedies.

This example reveals a certain asymmetry in IP’s vaunted protection for artists; it turns out to be a lot more useful to large businesses than to individuals.

But Eloise (if she has a last name I haven’t located it) recently got some unexpected help. Yesterday Neil Gaiman mentioned the case in passing on Twitter; and Gaiman’s Twitter feed has about 1.5 million followers. Overnight a firestorm of publicity erupted, talk of a boycott was floated, and now Paperchase is running scared and whining about how “dangerous” Twitter is. (You and Ahmadinejad both, guys.)

Now admittedly the case isn’t over, but Twitter has clearly done more for Eloise in one day than IP laws have done in four months. This suggests that IP proponents have not only overestimated the effectiveness of IP laws as protection for artists, but they’ve likewise underestimated the usefulness of voluntary alternatives such as boycotts and bad publicity.

It could be objected, of course, that Gaiman is a big name with a rather fanatical following, making it difficult to generalise from this case. But an institutionalised version of this response might be able to make up in organisation what it lacks in star power. Remember the Law Merchant, which secured compliance solely through organised boycotts.

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21 Responses to Bear Becomes Mushroom; Trout Implicated

  1. Crosbie Fitch February 12, 2010 at 4:29 am #

    It is only the 18th century privilege of copyright (asymmetrical due to its design for the wealthy press) that creates the notion that any artist who builds upon the work of another is a villain.

    As long as the ‘appropriating’ artist does not misrepresent the provenance of their ideas or images, does not falsely claim (even by implication) to have created an icon that they have simply copied, then there’s absolutely zero cultural harm that can occur. Indeed such cultural intercourse is constructive and progressive.

    The idea that one should suspend the people’s cultural liberty in order to create an artificial market is a purely mercenary one – in the sole interests of manufacturers of copies (and the state concerned at an otherwise uncontrolled press).

    Unfortunately, the masses have been well indoctrinated by copyright, so we are in an ideological schism:
    1) The maximalism of publishing corporations
    2) The indoctrinated delusion of ‘Authorial right’
    3) Cultural libertarianism

    You can perceive the notion of ‘Authorial right’ in Creative Commons licenses, i.e. that it should be entirely the author’s decision as to what liberties he is magnanimous enough to permit (restore) to his audience.

    Cultural libertarianism on the other hand is found in the free software movement (GPL), i.e. it is the recipient who should have his freedom (otherwise suspended by copyright) restored on principle.

    • Roderick February 12, 2010 at 12:21 pm #

      I don’t see what I’m advocating as a constraint on cultural liberty; it’s just a purely voluntary mechanism for helping to ensure financial support for artists.

      • Black Bloke February 12, 2010 at 2:15 pm #

        I think he might just be making a general comment on IP.

    • Neverfox February 12, 2010 at 2:24 pm #

      Nevertheless, just because there is no good argument for IP laws doesn’t mean that not giving attribution for source material isn’t a moral bad worthy of voluntary boycott and/or ridicule. In other words, I think it is an open question as to whether simply keeping silent isn’t, in a way, falsely claiming to have created an icon since people tend to assume that unless told otherwise. Answering that is a type of claiming-by-silence does seem to cause cultural harm in that it undermines such an arguably culturally useful rule-of-thumb. It’s useful because it allows us to free up resources by relying on reasonable trust to lower our transaction costs related to tracking down such information. Not everyone cares about the original source but I would guess that a large number of people do (given that a large number of people are passionate about the spirit of artists gaining from their work) . Attribution is not only considerate but helps the original artist gain from publicity that is of almost no cost to the derivative artist and it encourages the source artist to cross-publicize your derivative work (HT Charles Johnson).

      • Crosbie Fitch February 12, 2010 at 3:06 pm #

        Attribution is considerate, but a lack of it although possibly inconsiderate is not NECESSARILY a misattribution.

        Misattribution (whether explicit or implicit through context or omission) is a falsehood that egregiously impairs the audience’s apprehension of the truth. Misattribution is not a lack of credit. Credit is a mark of respect, and it reduces that respect if the credit becomes compulsory. A lack of credit where credit is due shows disrespect. There is thus ample opprobrium against the disrespectful artist who fails to credit their sources (though doesn’t indicate their work is wholly original).

        Laws should concern natural rights, e.g. to protect against deceit, not against a lack of respect or goodwill.

        • Nathan Byrd February 12, 2010 at 5:46 pm #

          My thoughts on this parallel other comments I’ve made elsewhere on slander/libel if/when those became legal. For now, people assume that an unanswered accusation is true, but once slander became entirely legal, the burden of proof would shift to the accuser in most cases.
          Likewise, people might begin to view all artwork as derivative or copies of some sort unless some positive assertion of originality was offered (and supported). I see a lot of objections to anarchy based on keeping the cultural assumptions of unanarchy intact and then pointing out the problems that would ensue.

        • Neverfox February 12, 2010 at 10:59 pm #

          I think I was fairly clear that I don’t think lack of attribution should entail laws or enforcement. In other words, I agree that “[l]aws should concern natural rights, e.g. to protect against deceit, not against a lack of respect or goodwill.” What I was saying is that lack of attribution is a moral bad, which doesn’t imply that I think it’s in the domain of justice. I called it a “harm” precisely because a harm is not the same as an aggression (the domain of justice).

        • Roderick February 13, 2010 at 12:32 am #

          Laws should concern natural rights, e.g. to protect against deceit, not against a lack of respect or goodwill.

          I agree that laws that are backed up by force should be limited to natural rights. But laws (like the Law Merchant — though if you don’t want to call those “laws,” then okay, I don’t want to quibble about terminology) that are backed up by peaceful means like boycotts can legitimately concern a broader range of things.

  2. Anon73 February 12, 2010 at 6:41 pm #

    There are two potential problems with a voluntary boycott system; the first is that it will be too weak to work, the second is that it will be too strong. The second problem seems relevant here; if people “voluntarily” join a boycott system controlled by a few individuals who basically have absolute say over what copying is or is not acceptable, how would that be fundamentally different than the way things are now?

    • Neverfox February 12, 2010 at 11:06 pm #

      Well, for one thing, it wouldn’t involve force; and, additionally, it wouldn’t have a monopoly over the boycott system in general. Those are two very big differences, IMO. If something was so obviously bad to everyone that it resulting in a natural single force (a natural monopoly), so what, as long as force isn’t involved? IP opponents aren’t against certain dynamics playing roles similar to the IP system (artists getting rewarded for innovation, plagiarism leading more often to bad outcomes etc.), only that they do so justly.

      • Neil February 14, 2010 at 6:54 am #

        How can you make all these sorts remarks about the illegitimacy of IP and yet use Creative Commons licensing for your own works without being considered a hypocrite?



        Surely we can leave Justine and Juliette out of this one.

        • Roderick February 14, 2010 at 1:05 pm #

          How is appealing to copyright law to get people to do what they’d have to do if there were no copyright law hypocritical?

        • Neverfox February 14, 2010 at 2:23 pm #

          This has to be done, as Roderick said, to simulate an IP-free world. If you didn’t do this, someone who was not anti-IP could come along and copyright the material, essentially locking out the author (and everyone else) and using the state against him. However, by using the copyright law defensively, one can use their belief in the illegitimacy of IP to simply not enforce it in any way that conflicts with one’s ideology. Better to have the copyright in the hands of someone who will not use it than someone who will. Voila, things work out as anti-IP intends.

          Hypocrisy only comes in if the person enforces the defensive copyright in a way inconsistent with their ideology.

          Yello, Neil!

        • Neil February 15, 2010 at 2:04 am #

          I don’t think they’d necessarily have to do it. As it pertains to software, e.g, it seems daft to have to attribute a particular algorithm to an author, especially if someone else comes up with that same algorithm independently.

        • Neil February 15, 2010 at 2:11 am #

          Yet IP is inconsistent with your ideology and you are enforcing it through state-sanctioned legal threats, which seem to also be inconsistent with your ideology. The legitimate defenses you do have include those which are outlined in the beginning of this article. To be consistent with your ideology it seems that you must resort to means which do not imply aggression.

          Setting the example instead of resorting to the party line would seem to provide a better example for people to follow and perhaps even a better defense in the long run. CC seems too short-sighted and counter-productive.


        • Roderick February 15, 2010 at 3:00 am #

          Yet IP is inconsistent with your ideology and you are enforcing it through state-sanctioned legal threats

          No, we’re enforcing anti-IP via state-sanctioned legal threats.

          Analogy: suppose the government passed a law making it illegal to destroy anything with a red stamp on it (even if it was your own property). That would presumably be an unjust law. And suppose, in addition, that there were no laws against murder. So, to protect ourselves from being murdered, we put red stamps on ourselves and encourage others to do likewise — and when people come to murder us (and won’t listen to our anti-murder arguments) then we point out our red stamps.

          Are we appealing to an unjust law? Sure. But we’re using that law in a particular application that’s just. And after all, we’re not allowed to appeal instead to a law against murder, because there isn’t one. What have we done wrong?

        • Neil February 15, 2010 at 5:08 pm #

          I understand and I agree. The analogy is excellent, of course. However it doesn’t seem quite like a perfect replica. Using CC may obtain similar results as a world of anti-IP. Although I fear it’s that the means to the end aren’t just in “pointing” but in making a threat itself.

          Take this for example:

          “If any provision of this License is invalid or unenforceable under applicable law, it shall not affect the validity or enforceability of the remainder of the terms of this License, and without further action by the parties to this agreement, such provision shall be reformed to the minimum extent necessary to make such provision valid and enforceable.”

          I think there are circumstances where there is legitimate enforceability with regard to the usage of others’ works. However this statement seems to refer to making enforceable the unlibertarian aspects of the license. If a libertarian supports the license and thereby claims to make enforceable those aspects of the license which are unlibertarian, then it seems that the libertarian isn’t just attempting to defend anti-IP, but threatening also to punish those who commit acts which may be legal in an anti-IP world.

          Besides, I am less concerned here about whether it is right or wrong than I am with the infliction of deleterious influence. I lack that “character flaw” of disagreeing with you. Yet I’m worried about the impressions people get from the acts in question and other similar behaviors. Acting in a seemingly hypocritical fashion may have largely the same effect as actually being a hypocrite, even if after close scrutinizing it is discovered that there is no hypocrisy whatever. People can be right about every aspect of whatever arguments are given and still lose a debate. The delivery of arguments are of vital importance as well.

          As it relates to there being “no law against murder”, well there is always a natural law against “it”, despite there being no positive coercive law. And the means of legitimately securing compliance with regard to ethical usage of works seem to differ very little from whether one chooses to use CC or forgo it altogether.

          So if CC actually does imply a threat of enforcement of unlibertarian laws, then it may be a violation of libertarian principles to use it. Yet even if it does not it still carries with it an impression of hypocrisy, that which seems to come at a greater cost than the likelihood of being ripped off attribution-wise, especially in this age of computer forensics.

  3. Jeff Gough February 13, 2010 at 1:42 pm #


    While we’re on the topic of intellectual property, I would like to put in another request for your articles “The Benefits and Hazards of Dialectical Libertarianism” and “Keeping Context in Context: The Limits of Dialectics” to be posted online. Sciabarra’s Total Freedom is packed with challenging insights but I’m curious to see how much of my skepticism for several of his claims overlap with your own.

  4. Shawn P. Wilbur February 13, 2010 at 2:19 pm #

    Proudhon, in “Les majorats littéraires,” also made the argument that the examination of literary property highlighted the weaknesses of property theory in general. Unfortunately, he never got a chance to pull the various parts of his property theory together, but I suspect that if he had, the same insight might have led him forward towards the “positive” theory of property he desired but never made much headway towards. I wonder if the left-libertarian debate on “property” (of all sorts) isn’t held up by the fact that “property” is treated as a trigger for legitimate reprisals, but not as the thing that is violated. To come between the artist and the image is not significantly different than coming between any other laborer and the physical fruits of their labor, if (setting aside the contested concept “property” for a second) one considers “ownness,” or the range of things that one might legitimately consider “proper” to the individual. If this wasn’t the case, the we wouldn’t be talking about boycotts.

    The difference between the cases seems to be a question of whether “force” can be justly used. And the criteria for that seem to be fairly arbitrary. It isn’t clear that what is wrong in most property crimes goes beyond lack of respect. If crimes involving my stuff (property in one sense) are to be considered invasions of my person (my property in another sense, which presumably is the basis for the first), or some extension of it, then it’s hard to understand how “harms” involving my ideas don’t also involve “property.” A principle of proportionality might suggest immaterial responses to immaterial invasions, or the like, but the hard line drawn between IP and PP seems pretty uncertain to me.

    Not being a believer in natural law, of course, all concern for “property” is essentially concern about respect. I suspect that some form of “occupancy and use” criteria would be as workable for IP as for other forms of property.

    • Neverfox February 13, 2010 at 9:05 pm #

      Shawn – You make some very interesting points; and I’ll add that this is one of the better succinct summaries of your thoughts on property to date.

      I can see some similarities with the idea in the old common law approach, where what was worth enforced compensation involved a subtle nuance that roughly followed the line “What is likely to lead to violence if not worked out sufficiently some other way?” One doesn’t really need to ask the question before hand; one simply needs a history of precedent in the resolution of violent feuds that form a sort of empirical natural law over time (see Hasnas); there is a charge of legal positivism here but I suspect that you’d bite the bullet on that one. And of course, violence is often the result of your central concept: disrespect.

      I think you are right to note that there is a tendency to have an aversion to disrespectful use of intellectual creations (e.g. plagiarism is “bad”) and that doesn’t provide occasion to wonder about why it doesn’t map onto something stronger than boycott (for reasons other than proportionality). This actually seems to take us to where Rand tried to go too, which is starting from IP and working from there to solid property, i.e. all property rights are IP rights. I do know that there are arguments out there against her specific approach, but I’m not very familiar with them. I have to wonder though if they might not strike at your concept of “aggression [sic] as disrespect for ‘ownness’.” At any rate, it might be an interesting way to defend your idea to go to those arguments and cut them off at the pass (or delineate the differences between your idea and Rands).

      • Neverfox February 13, 2010 at 9:07 pm #

        It should read “does provide occasion.”

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