Intellectual Property Does Not Protect Creative Rights

The phrase “creative rights” is one of the great misnomers. No one can take from you the right to be creative, and that right certainly isn’t granted by some government office. And yet, the phrase is commonly invoked as a synonym for “intellectual property,” laws, which are laws that actually stop creative people from freely marketing the products of their labor.

It’s a hard topic that requires a lot of thought.Once you realize that “intellectual property” laws are completely unnecessary, there is no going back. You see that innovation happens despite them, not because of them. You see that they actually slow down innovation by inhibiting information flows and stifling competition with government grants of monopoly privilege.

You see just how artificial they are too, imposing scarcity where it need not be. Shared information is essential to the market economy; IP is a fundamental attack on sharing and hence on the well functioning of economic life.

All of this seems obvious once you see it but people still resist. Why do people continue to support “intellectual property” despite all the evidence that it is not necessary and actually fails in the same way as other forms of mercantilism? It’s a hard topic that requires a lot of thought.

Something about this conclusion goes against much of what we think we know. Surely people deserve some sense of attribution and ownership (and profit too) when they create cool stuff, right? Actually, this is all confusion. Attribution doesn’t require intellectual property, ownership is impossible as regards ideas, and no one has a right to profit as such.

The Longing for Attribution

Big Eyes, a 2014 movie directed by Tim Burton, provides some insight as to why people continue to support IP despite all the logic and evidence. The film is the true and very compelling story of Margaret and Walter Keane, and the paintings of children with big eyes that made such a huge splash in the 1950s and 1960s.

Walter took all the credit and became the number one selling artist on the planet. Meanwhile, as it turns out, his wife was actually the artist. She revealed the truth in 1970. A libel trial followed at which Margaret proved her point by painting for the jury even as Walter claimed that his shoulder was too sore to permit him to paint.

Is it right that people deserve credit for their labor? She was the real deal. He was a complete fake. The movie chronicles her pain throughout the entire dreadful experience, how she lived in the attic painting even as her husband flitted about society receiving accolades and telling tales. It was eventually a soul-crushing experience for her but she prevailed. He died in 2000, never having admitted the hoax he perpetrated on the world.

The viewer feels Margaret’s pain very intensely. In the beginning, she was not unwilling to make a sacrifice of her ego for the sake of some greater good. She was not as bitter as she might have been. Mostly she was happy to have the chance to paint. Even so, her status as the secret talent behind the public figure — she resisted at first at then acquiesced — came to grate on her. Then she came to resent it. Finally she found the lie intolerable. But it took her years before she finally said enough and walked away.

The Injustice

Is it right that people deserve credit for their labor? In general, yes, but it’s more a principle of intuition than morality. If you have contracted for labor that is stipulated to be uncredited, there is surely nothing wrong with this. Masses of people work in every area of life without being able to attach their names onto what they produce. We consume products all day and we don’t know who precisely is responsible for making them. I have no idea who made the cookie I ate for breakfast or the sandwich I ate for lunch.

“Intellectual property” isn’t really assuring the right to attribution. It is about monopolizing the uses of information. But maybe it is different with creative work as versus routine production? Perhaps so. But even here, creativity is part of all kinds of work. Even writers and painters forgo credit by contract. Ghost writers do this all the time. For that matter, there might have been a person behind why my sandwich tastes better today than yesterday but I’ll never know his or her name. Can you imagine how impossible production would be if every bit of slight progress in all goods and services were somehow required to be attributed?

But what’s crucial here is that “intellectual property” isn’t really assuring the right to attribution. It is about monopolizing the uses of information. If you are working for a corporation and innovate in a way that results in a patent, your name will be attached to the patent in the documentation but that means nothing for your right to control it. The innovation itself becomes a commodity to be bought and sold in a gigantic market for patents that are bundled and unbundled like mortgage-backed securities.

It’s the same with copyrights. Copyrights do not somehow enable the author to take credit. The author can do that regardless. Copyrights assign the right to use the monopolized material. More accurately, actually, copyrights revealed the eventual owner, but what matters in practice are the terms under which they are managed, and authors nearly always assign those to large publishers in engage for royalties (which rarely arrive).

The institution of intellectual property did nothing to stop the fraud and much to perpetuate it.

Copyright doesn’t, in practice, enable artists to take credit for their work. In fact, they can sometimes work to deny the credit where credit is due. In the “Big Eyes” case, Walter prevailed upon Margaret to allow him to take all credit. She allowed it to happen. For his part, he was very strict about his supposed ownership and sold the image of her work far and wide. The copyright monopoly illicitly held by Walter enabled him to perpetuate the fraud.

The institution of intellectual property did nothing to stop the fraud and much to perpetuate it.

There is nothing wrong and much right about the desire to receive credit for the work you do, should the terms of your contract permit that to happen. Truly, people work more effectively and joyfully when they enjoy the praise of the community for what they have accomplished. But this is not a matter of morality and it certainly should not be a matter for law.

More Justice

If you hear about a government bureaucracy that says it is going to protect creative rights, look out: it’s a good bet it is doing the opposite.The sense of the community is enough to ensure that creators in art, literature, and science, get what they deserve. It is telling in this case that Walter was wined and dined all over the world under mistaken identity. That he was happy to go along with this tells us so much about his lack of character and, indeed, his fundamental corruption, especially given how strictly he imposed vows of silence on Margaret.

A quick warning that this is a difficult movie to watch. The viewer can’t help but feel a constant sense of disgust at Walter, and yet he is there the entire film, scene after scene. Somehow you are glad when the movie ends, just so that you don’t have to look at this insufferable jerk on camera anymore. That a film could make a viewer so creeped out by misattribution is a tribute to our desire to single out and celebrate the creators in our midst.

But we make a mistake if we think that “intellectual property” helps make that possible. Creative rights are universal, an extension of the desire of the human mind to improve his or her surroundings and make the world a better place. That desire is baked into the human experience. If you hear about a government bureaucracy that says it is going to protect creative rights, look out: it’s a good bet it is doing the opposite.