Listener Calls

ED: If you’re just joining us, this is BackStory. And we’re talking about the history of intellectual property in America. And we’ve arrived at that point in our show when we reach out to some of the folks who have left comments on the topic on our website.

PETER: Hey, guys. Gather round. We have a call from Annapolis, the capital of the great state of Maryland. And it’s Lisa. Lisa, welcome to BackStory.

LISA: Hi.

BRIAN: Hey. Great to have you. So intellectual property. What do you got?

LISA: OK. Well, I’m a freelance artist. And one of the things that I’ve really noticed as far as copyright law, that it’s become almost a weekly affair that you see some artist online discovering that their work has been stolen by a large corporate entity, say Urban Outfitters or Hot Topic.

And, really, your only recourse to that point– because most of these people who are being victimized this way are maybe 25 and living in an apartment in Brooklyn with four other people– is to bring it up on Twitter and have boycott threatened.

PETER: Wow.

LISA: Because taking it to court against a large corporation, it’s entirely out of the question for an individual.

BRIAN: Mmhmm.

LISA: So I guess I’d like to talk about how it went from being something that was supposed to protect innovation to something that was a weapon for corporations.

PETER: We have some thoughts on that, Lisa. But has this happened to you?

LISA: Not me personally. It’s friends of mine. Often what will have happened is the company had hired a designer. And the designer went ahead and submitted this to the company. And then the company will claim that the design belongs to them.

[INAUDIBLE]. You’ll see some things that are just very clearly inspired or traced over. And ones that are– like literally the original illustration has been taken into Photoshop and maybe the colors have been changed a little bit.

BRIAN: Yeah. Right.

ED: It seems to me it’s kind of a byproduct of the new era, Lisa, where you have– suddenly you can be an artist and be seen all over the world pretty quickly.

LISA: Mmhmm.

ED: It’s just that your ideas can be taken pretty quickly as well. So it’s kind of a devil’s bargain. Does it seem?

BRIAN: Mmhmm.

LISA: Yeah. Certainly.

BRIAN: Well, Ed, didn’t you have this problem all the way back in the 19th century when people would come up with a nifty idea for a farm implement and, before they knew it, someone would make like a little change or whatever?

ED: Yeah. But ironically, the thing that we think of as the great patentable invention of the cotton gin was immediately overtaken by all kinds of people who would take the idea of a rotating device that would pull cotton from the seeds and replace it with, say, something that looks like a saw blade. And then they would change the shape of that. Then they would add another handle.

And the courts were just completely swamped, even in the rural slave South, out of all places, with just too much innovation going on.

PETER: Well, we think that Eli Whitney invented the cotton gin, right? But he never made any money off it.

ED: Right.

LISA: Mmhmm.

ED: So I guess what I’m saying is is that it may be in times a special intellectual flux that this stuff– it’s really hard to control.

PETER: Yeah.

BRIAN: Yeah.

LISA: Yeah.

BRIAN: Yeah. The history of this is even worse than that. Because a lot of corporations, particularly the huge ones that could afford research labs– this is a great thing, inventing ways to live for tomorrow. You know what most of the work went into in many of these great labs was inventing things that could be patented so that they couldn’t be used by other corporations.

PETER: Mmhmm. Yeah.

BRIAN: So some of today’s household names, which I will not mention in corporations, they had whole operations that were negative patenting. And so they were pouring money into invention and tapping the genius of these scientists and engineers all so that they could continue to keep using the same outmoded– I won’t mention the item– that they had been using. And so that some other company wouldn’t get an edge by making that item a little bit better.

ED: I think what’s interesting and kind of heartbreaking about the story Lisa is telling is the disparity between major corporation with all this marketing clout and somebody who’s out on her or his own, creating designs.

LISA: Yeah.

PETER: I think in courts, plagiarism is getting pretty specific about exactly what would constitute a violation.

LISA: Mmhmm.

PETER: People know it so well that they stay just inside the line of acceptability. But I’m wondering in design, how would you go about proving that something is too close to something else to be an independent standalone? Are there criteria that artists and designers agree on?

LISA: Usually I think the specific is that it has to be altered at least 30% to be considered an original work.

PETER: Uh huh.

BRIAN: Wow. 30%?

LISA: So just changing the color of something– yeah. Taking an original illustration and changing the color doesn’t constitute redrawing something that’s similar but different enough.

PETER: But actually about 70% could be pretty much a rip off.

BRIAN: Yeah, and, Lisa, I’ve got to tell you. I alter shirts 30% as soon as I put them on.

[LAUGHTER]

PETER: That’s not that much.

[LAUGHTER]

ED: You’re so creative. So what’s the name of the guy who did the Obama hope illustration that was basically a photograph then that he colored and stuff? Shepard Fairey.

LISA: Shepard Fairey. Yeah, that was it.

ED: What would you think of something about that, Lisa? What percentage change is that?

LISA: Well, that’s a little bit difficult. It looks like it’s been altered more than 30%, obviously. It’s an illustration rather than a photograph. But it did use somebody else’s intellectual property as a basis. And they decide in favor of the original intellectual property holder.

ED: Yeah. And it’s not– and the reason I ask it is kind of rhetorical. Because it’s not clear where creativity lies in all that.

PETER: And you know, Ed, the interesting thing is we’re talking about corporations versus individuals, designers, artists. But there’s a third party, of course. And all the ambiguity we’re talking about makes these things end up in court.

So the third party, of course, is the legal system. Who’s making out like bandits, so to speak, when it comes to these intellectual property things? It’s, of course, the lawyers.

LISA: Oh.

PETER: And I hope there’s going to be no legal action as a result of this slur against a great profession, but on that note our producers have said the show will be shut down now. So, Lisa, we got to so good bye.

LISA: Oh, thank you so much.

PETER: Bye bye.

ED: Bye, Lisa.

LISA: Bye.

BRIAN: So long.

If you’d like to join us in a future show, have a look at the topics we’re working on. They’re all at backstoryradio.org.

ED: we’re going to take a short break. When we come back, the hand of big government protecting your Twitter feed.

PETER: You’re listening to BackStory. And we’ll be back in a minute.