Marketplace of (others’?) ideas, Part two

Posted by Rob Walker on November 25, 2009
Posted Under: DIYism,Ethics,Subculture Inc.,The Designed Life

Okay, then, an update on the recent-sh post, titled The Marketplace of (Other Peoples’?) Ideas. Basically this was me thinking out loud about indie creators who feel their work is getting ripped off by big companies, and what if anything can be done about it. Notably:

A prominent theory of Web-thought is that such exposure [of alleged ripoffs, online] ought to spark some kind of response and ideally resolution of the specific instances — and, you would think, a downtick in the number of such instances. And yet it seems routine.

I had a number of private conversations with various folks about this post after it went up. The upshot is as follows.

1. It’s a problem! Lots of indie creators can point to many instances where they are getting ripped off, or feel that way, by big companies. No news there.

2. Fighting back is a problem, too! The stories that involve attempted legal responses aren’t particularly uplifting — or at least not so far. I can’t really get into specifics on this, for a variety of reasons, but there seems to be a notable dearth of anecdotal evidence of an indie creator using legal methods to successfully get a big company to, say, cease and desist, make good with royalties, or even acknowledge having done anything wrong. If you know of a great example, please tell me.

3. There is some anecdotal evidence (again I must avoid specifics) of big companies responding to such threats by wheeling out the big guns, filing countersuits, etc. They have more resources.

4. What about the court of public opinion? Well, I mentioned You Thought We Wouldn’t Notice, but nobody I spoke to seems to see that as an adequate response, and I have to agree. Maybe it’s the anonymity factor, which can lead false or at least questionable acusations;  maybe it simply doesn’t have a large enough audience (indeed, some I mentioned it to had never even heard of it). Bottom line is its existence doesn’t seem to have had the desired impact — or, again, at least not so far.

5. Well, what about other sites? From time to time it seems that if a lot of big sites really pick up some perceived ripoff and run with it, it makes some difference. One sort-of example involves the infamous Johnny Cupcakes/Urban Outfitters episode from 2006. So far as I know, Urban never actually made any particular response or capitulation regarding the underlying allegations. But, in a weird way, all the online publicity probably helped Johnny Cupcakes, bringing its designs and style in front of a much broader audience. And so far as I know there’s been no more trouble been them and Urban — though whether that’s specifically because of the online uproar, I couldn’t say.

6. One wise observer suggested the creation of a more official version of a court of public opinion — something like a cross between a reality show and a Web site, where a panel of expert judges would decide whether or not something was ripoff. (This suggesster even had a name for it: Knockoff Court.) However, this person was suggesting that I do this. I am not doing this. For starters, it would seem to entail legal risks! But more to the point, some kind of genuine respected authority would have make such a thing happen, and would have to put someone in charge who had time to really investigate, get comments from parties involved, and so on. I honestly can’t think what entity would have the right mix of audience size and credibility with both indie creators and the corporate world. The Consumerist? PSFK? Design Observer? Fast Company? Core77? And even if one of those is the right answer — would they really have the resources to pull it off in a way that truly had impact? (PS if anybody does it I’m happy to be a judge!)

7. So where does that leave us? Right where we began! My real question was: Given all the rhetoric about the Web, does the brave new 2.0 world actually level the playing field on these matters? My answer is: No. James Kicklighter, referencing my earlier post, observed: “As the world grows smaller, it’s easier for people to be caught in these kind of schemes.” Maybe, but to me what’s really meaningful right now is that even if Kicklighter is right: It evidently doesn’t matter. (Plus, I would guess the world-smallening via the Web also makes it easier for lazy corporate design flunkies to troll around and find “inspiration” in the work of real indie creators.) As far as I can tell, once you venture out of powerpoint-slide land and into reality, genuine indie creators have not been empowered in these scenarios. Big companies aren’t scared of bad publicity of being “caught” on the Web, unless it gets really huge — and usually, it just doesn’t. (Even the Urban Outfitters/Johnny Cupcakes thing, a pretty big deal online, hardly put Urban out of business.) Thus: They simply ignore it. (One last time: Counter example? Disagreement? Let me know.)

8. Where does it all go from here? Another wise observer of these matters believes that indie creators do need to fight back, via the legal system, take it all the way, and start setting examples. It’s certainly true that the main recurring theme I encountered in my casual conversations about this was, “Look, in most cases, it’s just not worth it. The aggrieved party should get over it, move on. It’s really hard to win these cases, and a big company will bleed ’em dry.” While that may be right as a practical matter, it also boils down to: Do nothing. My wise observer’s point is: That attitude guarantees that this will keep happening, so someone has to make a stand and fight.

Not a satisfying conclusion eh? Well, maybe you have better ideas. Certainly I wouldn’t be the only one curious to hear them.

Further diversion may be found at MKTG Tumblr, and the Consumed Facebook page.

Reader Comments

For point 6, what if an organization like Snopes branched out and included the tracking of ripped-off indie work? It could be a section organized by the work, the artist and the corporation in question. Snopes (or site like Snopes), could do the basic work and then the response could be crowd-sourced.

For point 8, could there be a class-action route to take? What if the Electronic Frontier Foundation got on board here and brought some attention to the issue?

Written By Zac Chase on November 27th, 2009 @ 11:16 am

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