Why I don’t believe Penguin’s side of the story

Righty-ho. This is something I’ve been working on and off for about two months, and I’ve kept having to defer this as more urgent news, reviews and previews took precedence. As you will see, it’s taken quite a bit of work going back finding primary sources, scrutinising them, and then writing about what I found. But here it is at last: a follow-up to “On the Ladybird vs Elia spat” that I wrote back in January, concerning the needless row between an independent author and Penguin Random House over a parody of the Ladybird books, and subsequent arguments over who stole whose idea. At the time, I tried to avoid coming off the fence too strongly, because I wanted to make to point that it’s good to build on each other’s ideas, and – oddly enough –  I tried to suggest it was time to put the dispute behind them. But here’s where it ends. This is where I take sides and lay into Penguin.

Teal Deer sign

Warning! Very long post ahead!

The reason I’m compelled to take sides is the attitude from a small but vocal number of people taking the line that Penguin is entirely blameless and it’s completely Miriam Elia’s fault. What’s more, the comments were a mixture of rude, aggressive, patronising, and – I suspect – attempts to intimidate people like me into deleting anything that might make Penguin look bad. So I had to go back and double-check the web pages where I got originally got my information from. And from there, I checked the primary sources cited. I thought I might come to some middle-of-the-road conclusion – perhaps Penguin merely mishandled things and allowed a misunderstanding to get out of hand, but I guessed wrongly. The evidence I’ve found overwhelmingly backs what Elia and others have been saying all along, and the claims made for Penguin stand up very poorly.

One important thing to say first is that this post does not cover every single point made in defence of Penguin – I could say more about this, but I want to concentrate on the big whoppers. Even so, this is going to be a long one, because sweeping statements are short and easy to make, and long and laborious to debunk. But read this you should, because this is quite possibly a large corporation abusing its position to try to silence artists they don’t like with legal threats they aren’t entitled to make. And that is something everyone in the arts world should worry about.

I didn’t really want to spend lots of time on this, but I’ve not been left with much choice. Okay, brace yourself, here we go …

The first mystery

Before I can even begin to scrutinise Penguin’s side of the story, there is an early problem: we don’t actually know what their side of the story is. Miriam Elia’s side of the story is well documented, but Penguin have remained virtually silent on the matter. Instead, the defence comes entirely from supposedly unrelated third parties across a series of blog posts, blog comments, tweets and comments on news stories. And this is where things get a bit weird. Because although these people are supposedly commenting as individuals, their pro-Penguin arguments are remarkably similar. It reminds me of corporate communications teams issuing “lines to take” directives to staff, or all the times on The Daily Politics when politicians from the same party all trot out the same soundbite. Weirder still, judging by the speed of the responses, its looks like some or all of them were actively trawling the internet for whiffs of anti-Penguin arguments. (There’s also an observation that the cheerleaders of this corporate giant included a Guardian journalist, a Green Party member and a Jeremy Corbyn supporter, but that’s an aside.)

Given the uniformity of their arguments, I even wondered if was some sort of astroturfing operation by Penguin- after all, some of the more personal attacks would look bad coming directly from them. Having thought this over, I think that’s a bit over-paranoid, but I’m still in the dark over why their sets of arguments are so similar. The only clue is that most or all of them seem to be associated in some way with Joel Morris and Jason Hazely, the writers of the “official” Ladybird parodies. It would be understandable if they were friends who wanted to defend them from allegations of stealing ideas, but they go way further than that and defend every single action of Penguin and their lawyers. For want of a better explanation, my guess is that the pro-Penguin version of the story we hear now was originally cooked up by someone in Penguin’s communications team for their staff. That story was told to Joel and Jason, who in turn told that to their friends, and somewhere along the line somebody took this unreliable unverified hearsay as fact.

I will quite happily reconsider my views if and when Penguin give their own version of events. Until then, for purposes of this article, I am assuming that what we’re hearing on the internet now is effectively Penguin’s official account told by proxy. One other important caveat: where I refer to legal correspondence from Penguin, I am relying on quotes made to Miriam Elia made to newspapers and reputable websites. I’d rather not have to rely information through this route, but it’s the best I’ve got, and Penguin could easily have had this information corrected or removed if it wasn’t true. They only have themselves to blame if it’s wrong.

So caveats aside, let us begin.

The claims debunked

Picture of stuff penguin

Picture of Penguin. Commonly found on internet with caption “Penguin can get stuffed”. Meaning unknown.

If you’re still reading this, well done. But I’m afraid we’ve only got started. Before I get stuck in, there’s a question of what exactly what Penguin’s story is. The pro-Penguin accounts are similar but there’s a few variations, in both claims and emphasis. However, I think I can safely say this account is broadly representative. I encourage you to read this yourself (so there can be no claim that I’ve deliberately misrepresented it).

Anyway, the following facts are accepted by all sides:

  • Miriam Elia produced a parody of the Ladybird books which included copyrighted material including the Ladybird logo, which Penguin owns as a trademark.
  • Penguin made a copyright claim that gave her one month to sell her books, after which she was required to destroy any remaining stock. She acceded to this demand.
  • She released the same book later in the year – after the laws on fair use and parody changed – with the trademark removed and few other alterations made. Penguin took no further action.
  • Penguin subsequently printed a series of books by Joel Morris and Jason Hazely, based on their work for the Framley Examiner, which pre-dates We go to the gallery.
  • Once Penguin announced they were going to do their own parody Ladybird books, Miriam Elia made a big thing over the way she felt she was treated.

Nothing wrong with any of this. It’s these bits of the pro-Penguin story which are under dispute:

  • Penguin didn’t sue Miriam Elia, they merely made a copyright claim.
  • She was allowed to sell books for one month so that she could cover her costs.
  • Penguin had no choice but to act in order to protect Ladybird as a children’s brand.
  • They had no problems with her producing the parody after the logo had gone, and the fact that law law on fair use changed in the intervening period is unrelated.
  • Miriam Elia accepted this arrangement as fair at the time, and only complained once the official Ladybird Parodies were announced.

The conclusion you’re presumably meant to draw: Penguin are principled publishers who go out of their way to support other artists, and what you read in the media is a distortion of what really happened. Who can think they did anything wrong? How could the publishers of Ladybird ever do such a thing?

Well, the first thing where you ought to smell a rat is that this story has not appeared in any reliable news outlets – only blogs, social media and online comments. One would think that a company of this size could have got their side of the story printed somewhere reputable if it was credible. But it’s only when you start looking at the details when you notice how much is wrong with this. Maybe not stuff that conclusively proves the story false – just stuff that makes it a lot harder to believe it’s true.

And now we get into the meat of this. Are you sitting comfortably? Then I’ll begin.

Dubious claim 1: It was only ever about protecting the Ladybird trademarks

I’ll start with the argument over which the whole thing rests. According to the pro-Penguin account, the only objection was the use of Ladybird trademarks – once that was out of the way, they had no further objections. So there’s only two possibilities. If it’s true, Penguin acted completely within their rights both legally and morally and Elia’s claims of corporate bullying are unfounded. If it’s not, then Penguin’s real aim was to ban the book completely, they failed, and this claim is an attempt to cover their tracks and rewrite history. There’s not really any middle ground here.

There’s a bit of confusion here because the different accounts aren’t quite consistent over what trademarks Penguin were claiming. Some say it was just the Ladybird logo itself, others say it was also over the colophon on the inside cover. (There was also the matter of some illustrations inside the book being collages of cut up illustrations of Ladybird books, but that goes beyond the issue trademarks. I will cover this later.) But the details don’t really matter. The question is simply whether Penguin’s response was a plausible one for a publisher whose sole contention was the trademark, not the book.

Was their response plausible? It’s certainly a highly heavy-handed response for such an minor trademark breach – especially for a publisher that supposed to be so sympathetic to small artists. I’d have said a proportionate response would have been to get an undertaking that any future print runs would exclude the trademark, but allow her to sell the first print run (without any time limits or demands that books be destroyed). Honestly, in country with a population of 70 million, how much damage could a print run of 1,000 books do to Ladybird’s image? And even if Penguin did consider such a small print run to be such a big deal, was it really necessary to demand books be destroyed? Surely an agreement to stick labels over the offending items would have done the job.

And there’s one detail that makes no sense at all. As well as objecting to the printed books, Penguin also threatened to stop the pictures being exhibited in public. Why would they have a problem with that if it’s only about trademarks? The logo and colophon only appeared on the inside and outside of the book covers, but any artwork exhibited would have been the pictures inside the book, which were logo-free and colophon-free. If you can think of an explanation as to why it’s all about protecting Ladybird’s trademarks, believe that if you like, but this behaviour to seems far more fitting of someone who wanted the book stopped completely.

Dubious claim 2: There was no legal case because Penguin did not sue

This is an argument I’m convinced must have originated from Penguin themselves, based on my own memories of six years of corporate bullshit. What we’re meant to believe here is that Penguin did not “sue”, meaning that they never got as far as formally taking the case to court. All they ever did was threaten to take her to court – so, that’s okay then … I cannot imagine anyone but a PR team of a corporation coming up with an argument that lame.

Why is it such a lame argument? Because everybody knows that litigation begins long before it reaches the courts. Often the mere threat of suing someone is enough to get your way. Especially if you’re a large corporation with a massive legal department and the other guys don’t have the means to defend themselves. And yes, Penguin were making legal threats loud and clear. A copyright claim against a self-published work is a implied legal threat – the courts is the only recourse if the defendant does not comply – but in this cased there was nothing implied about what Penguin threatened to do. They sent a “cease and desist” letter, and they explicitly warned her that they could apply to the courts to have the books confiscated and destroyed.

That doesn’t automatically put Penguin in the wrong – it all depends on whether legal action is justified for the case in question. If it’s legally and morally right to sue, it’s also legally and morally right to threaten to sue. But that’s what not the pro-Penguin people are claiming. They are effectively saying there’s nothing wrong with dishing out as many legal threats as you like, demanding whatever you like, to whoever you like, no matter powerful your legal team is – just so long as the other side capitulates before it reaches the courts. (“But there was no legal action,” they can retort.) It doesn’t surprise me that a large corporations might make some lame excuses to justify excesses of power against an individual. It does surprise me when Green Party members, Corbynites and Guardian journalists make those excuses for them.

Either defend Penguin’s right to take legal action up to and including suing in the courts, or don’t defend it al all. To claim there’s nothing wrong with it simply because it never reached the latter stage is disingenuous and cowardly.

(Footnote: There is another possibility as to why this argument was made, and this scenario is less charitable. It could be that whoever argued this knew perfectly well the extent of the legal threats, but hoped that by saying “But they didn’t sue her”, that would mislead enough people into thinking that no legal threats existed of any kind. The only reason you’d want to do that, of course, is to try to have people believe that Miriam Elia made up the entire thing. I will return to this later.)

Dubious claim 3: Penguin had to act in order to protect the image of Ladybird

This is a slightly different claim to the first one. Some people claim it’s only about Penguin’s trademarks, but Penguin themselves are more specific. It’s not just trademarks, they make a big deal of protecting the image of Ladybird. (In other words: heaven forbid anyone should associate Ladybird with this sort of smut.) I suppose I should be grateful that, for once, Penguin gave us something on the record rather than the usual third-party defence. Here is the quote, made at the time of the original legal action (emphasis mine):

We are in discussions with the artist. While we respect her artistic rights, we take our copyright and our trademark rights very seriously – not least around our Ladybird brand which has been developed over many years to help very young children to read.

Okay, so Penguin does not with their cherished brand to be associated with grown-up humour. In which case, the obvious question is why they went on to publish the Ladybird Books for Grown-Ups. And the obvious answer that might spring to cynical minds is that Penguin changed their tune the moment they realised they could cash in on it. However, it’s a little more complicated than that. It’s only fair to point out that there had been authorised Ladybird spoofs before, such as this guide to online shopping from back in 2000. So maybe Penguin has a stance that grown-up parodies can have their blessing just so long as they’re not too adult. I’d say that Joel and Jason’s books are largely PG-rated – We Go to the Gallery might get a 12A.

The trouble is, this raises all sorts of questions of what morals Penguin applies to Ladybird parodies. There does seem to be an odd set of moral standards, and if they don’t stand up to scrutiny, it could indicate – heaven forbid! – that a large company sold its principles down the river for money. Surely the publisher of nice books like Peter and Jane would never contemplate such a thing! Never mind, let’s go with it. Taking in good faith the notion that it’s all about protecting Ladybird’s family image, let’s go through all of the main queries, and I’ll try my best to explain it away.

  • First of all, the modern art images in the book that Penguin finds so objectionable are pretty mild compared to the real thing. It does seem odd that Penguin should express so much concern over a book that’s obviously not meant for children, but don’t seem to have any problem with people taking their children to see worse stuff in real art galleries (as the book satirises so brilliantly). Never mind, it’s not Penguin’s fault what children are shown in art galleries, maybe they considered it wasn’t not relevant to the copyright claims. I’ll let that go.
  • Let’s look instead at what Penguin do object to. First of all, they complained about the possibility that an old person might buy it and read to his grandchildren. Yes, really. Okay, maybe Penguin genuinely believes that. I personally think it’s a little insulting to assume the elderly are that idiotic, but maybe they hold a low opinion on the common sense of senior citizens.
PJ41-555x420

OMG! Someone said a word children shouldn’t hear! (And not “vagina”.)

  • Concerning the complaint that the book’s a “swear-fest”, Penguin objected to the use of the word “fuck”, which appears once, in one of the pretentious paintings. Fair enough. But they also objected to the use of the word “feminist”. Yes, folks, it’s bad for innocent children to see the painting for the big vagina, but doubly bad that Mummy says “Big vaginas are feminist” … Bit stuck for an explanation here. I know that Ladybird books from the 1970s weren’t terribly hot on equality of the sexes, but I thought we’d moved on. Perhaps not.
  • They seem to have some strange ideas of where children might be exposed to these harmful images. As well as the panic over pensioners reading these books to children, Penguin also wanted to stop the pictures being exhibited in public – after all, someone might bring a kiddie to that. But the one place where Penguin seemed to be indifferent about the book’s presence was online. Perhaps they still think that only grown-ups know how to find naughty pictures on the internet – crap explanation I know, but I can’t think of a better one.
  • The strangest double standard of all, however, was Penguin’s reaction to another Ladybird spoof doing the rounds at the same time. They were Craig Deeley’s Ladybird series, which gave new titles to old books. They are also very very funny and they provided the inspiration for We go to the gallery, but two things are of particular significance: firstly, they are just as twisted as Miriam Elia’s book, if not worse (my favourites include are “The Story of Prostitution” and “He’s Not Your Dad”); and secondly, this used copyrighted front covers, including the Ladybird logo. Not only did Penguin have no objection to this, they even gave their blessing and started selling some of them as greetings cards in 2015 (after it became clear how popular unauthorised Ladybird spoofs were). I suppose it’s fair to point out that only the milder ones are being sold as cards, but the ruder ones are still on the internet – but as we’ve already seen, Penguin doesn’t seem to worry about children finding naughty pictures there.
tumblr_n7mi50PO951suuexzo2_500

Move along, nothing to see here.

I supposed there could be some code of moral standards as to what is and isn’t acceptable to Penguin for grown-up Ladybird parodies, but I’m buggered if I know what it is. What they do and don’t object to reminds me of the daft moral standards of the Lord Chamberlain’s Office, where a nude woman on stage who was still was art, but the same nude woman moving was obscene.

So I’ll concede that it is possible that Penguin is genuinely motivated by a desire to preserve the family values of a well-known brand of children’s books – but only if their family values are as arbitrary and illogical as the moral standards that went out of fashion last century.

Dubious claim 4: Penguin allowed Miriam Elia to sell enough books to cover costs out of consideration to her

Now we move on to a claim intended to portray Penguin as the good guys. The point made here is that Penguin allowed Miriam Elia to sell books with their trademark for one month, even though they could have stopped her selling the trademarked books there and then. What we are supposed to believe from this is that Penguin are a caring publisher who didn’t want to ruin a small artist, and therefore waived some of their rights so she had a fair chance to recover her costs.

Without knowing the details of these decisions, it is entirely possible that Penguin’s motive was this benevolent one claimed by Penguin’s supporters. However, there is another possible reason why Penguin did this, and this one is a lot more mercenary. Out-of-court settlements are rarely made because the claimant wants to go easy on the defendant. The far more common reason to settle is to avoid the risk of losing. It was in Penguin’s interests to make a small concession rather than fight it out in court.

And yes, had Penguin gone to court in March 2014, there was a risk they’d lose. A small risk, but a risk nonetheless. The laws on copyright and parody have always been vague, and even though the Law did not expressly recognise parody as a form of fair use at the time, this had been going on for ages and no-one minded. But, in theory, all sort of comedy could have banned, such as the famous film parodies from French and Saunders. A judge might shy away from setting this sort of precedent. And if Penguin won in the court of law, they might have still lost heavily in the court of public opinion. Could the publishers who once fought for the right to print Lady Chatterley’s Lover have found themselves under attack from well-known comedians – maybe French and Saunders amongst them – fearing their work was under threat?

Courts are risky places even for Goliaths suing Davids, and it’s quite normal for the claimant to throw the defendant a bone to avoid this risk. In this case, it’s entirely believable that Penguin thought giving Elia one month to sell the books was the minimum concession needed to get their way without a court battle. Or this concession might have been motivated by the altruistic reasons suggested by Penguin’s mates. Without direct access to the thoughts of their legal team, we’ll never know for sure. But if you think the one-month grace period proves Penguin had benign intentions, you are very naive over how corporate litigation works.

(One other observation: if the grace period was indeed part of a plan to kill the book without the attention or risk of a court battle, Penguin bungled it big-time. Quite apart from the fact that it’s been a PR disaster for Penguin anyway, by turning We go to the gallery into a one-month limited edition item, it got way more attention that it would have got had Elia been allowed to sell the stock in her own time. I can’t imagine it was their intention for last ten first edition books to go to auction. But that would be no-one’s fault but their own.)

Dubious claim 5: Penguin never had a problem with Miriam Elia publishing the same book once the Ladybird trademarks were gone

This argument is largely a continuation of dubious claim 1. In one version of events – the one where Penguin’s sole concern was the use of their trademarks – once the trademark issue was resolved, Miriam Elia was free to print as many books as she liked just so long as she didn’t use the Ladybird logo again (and the fact that the law on parody changed before the reprint was completely unrelated). In the other version, the one where Penguin wanted to kill the book completely, they continued making legal threats long after Elia agreed to remove the Ladybird logo, so she waited until the law changed, called their bluff, and Penguin was forced to back down. Again, only one story can be right here. Someone is telling porkies.

To help me decide who to believe here, firstly we ought to look at who was objecting to what in the early days. According to this report from Channel 4 news, Penguin objected to use of Ladybird’s “key words” series. Reprinting the book without the Ladybird trademark was easy, but it would have been a lot harder without the key words, and that smacks of an attempt to kill it.

Who knows, maybe that was a single quote from a single source taken out of context. So let’s instead look at the argument over the collage images. As well as the logo and colophon, one claim to copyright from Penguin was over some of the images of her book, which collages that contained images cut up from Ladybird books. In the three months after the sale of her original print run, Elia and Penguin were in a legal dispute over ownership of these images. Elia argued that Penguin no longer had the rights to these images (apparently something to do with an agreement where right reverted to the artists after 25 years); Penguin said they were looking into these claims but didn’t accept them.

I don’t know who is legally right over the ownership of collages – my judgement is that Elia would probably have been covered by rules of “transformative” work, even before the law change – but that’s not relevant here. What’s relevant is this obvious question: why were Penguin quibbling over ownership of the images at all if they didn’t object to We go to the gallery being printed without the Ladybird trademarks? Surely a publisher’s legal team has better things to do than argue over a copyright claim they don’t plan to use.

What is most suspicious about this claim is that it would be so easy for Penguin to prove they didn’t object to a logo-free book if that was true. At any point during the four months of legal wrangling, they could have put in writing an assurance that they would not take legal action against the book provided the logo was gone (and, if they really objected to the collages, an additional condition that these pictures would have to be re-painted without that copyrighted material). Then if and when Elia complained about corporate bullying, Penguin could have shown this assurance to the press and scotched her claims once and for all.

If it’s true that Penguin weren’t trying to stop the book being printed, it would require masses of factually incorrect information being printed in the mainstream media with no attempt from Penguin to correct any of this. I suppose that’s possible – I’m just buggered if I know why Penguin would do that.

Dubious claim 6: Miriam Elia never complained about bullying until the Ladybird parodies came out

To be honest, none of the stuff above really bothers me. If it was just some self-proclaimed lefties furthering the cause of socialism by making excuses for the behaviour of their favourite multinational, I would probably have let it go. But once they start trying to personally discredit the individual who’s speaking out against this corporation, that crosses the line. I cannot let that go unchallenged.

So this argument is that Miriam Elia’s grievances against Penguin are a recent thing, citing a quote in the Guardian from back in early March 2014. I suppose I can give some credit to Penguin’s defenders for using a source for a change, rather than their usual unverified hearsay. Here’s what it said (emphasis mine again):

She stressed that Penguin has been sympathetic and has been open to negotiation, but ultimately would not back down on what it saw as infringement of its copyright.

“I’ve been talking to them a lot and suggesting ways around the problem. And they do understand. There’s no malice, but it’s harsh because they can destroy the work. I just want it to be appreciated. It was supposed to be an homage to Ladybird – and a bit of a satirical comment on the art world, I suppose.”

So judging by the way they gleefully leapt onto this quote, it’s pretty obvious what they’re trying to tell us. She said Penguin was sympathetic back then, but now she’s talking of corporate vandalism! And she she she was sued when she wasn’t! No need to say any more, you can draw your own conclusions. (Of course, we’re not saying that she’s making things up in order to draw attention to herself – we’re just insinuating it very strongly.)

Oh dear, oh dear, oh dear. As with the claim that “Penguin didn’t sue her”, it’s a truth, but a very selective and misleading truth. Had they been less judicious with their quotes, they might have mentioned this quote to Dazed, barely four weeks later.

At first I was scared, but now I just want people to know what’s going on. They’re trying to bully me. I have a right to my art and a right to satirise.”

Or they might have mentioned  this e-mail to supporters quoted in the Evening Standard, made not long afterwards:

“After my repeated requests that the publisher show evidence they own the copyright to the original illustrations sampled for We Go To The Gallery, Penguin are still refusing to deliver. The deluge of legal waffle and threats, without any substantial evidence, makes me suspect they do not actually own the copyright, and possible sold the rights some years ago.”

Are these the words of someone who thinks still thinks Penguin is sympathetic and open to negotiation? I think not. If she did once believe that, she evidently changed her mind in the same month – and certainly not as late in the day as when Penguin started doing their own Ladybird parodies.

Nevertheless, there is a minor puzzle of what made her change her tune so strongly. Here, I’m going to go into speculation. For anyone who thinks that a person who once said “there’s no malice” couldn’t possibly have a genuine change of heart, I can only assume you’ve never been on the receiving end of corporate bullying. I have, and I know what it’s like. There are two things they are good at: one is reinterpreting laws to mean whatever they want them to mean, using loopholes and workarounds you never imagined possible; and the other – the one more relevant to this discussion – is the way they psychologically wear you down. They know how to portray themselves as the nice guys and imply you’re the one who’s being unreasonable, and when you are relentlessly subjected to this over weeks or months, you eventually start to believe that maybe they’re right.

It’s only after it’s over and you have a chance to reflect on things when the truth dawns on you. It took about a year to fully appreciate how badly I’d been screwed over – Elia, I must assume, wised up before the month was out, perhaps buoyed by the support she was getting. As I said, this is just speculation, and maybe she has a completely different reason why she changed her mind. But regardless of the reason, the notion that she only started badmouthing Penguin once they did their own grown-up Ladybird parodies is plain wrong. And for the person who cherry-picked the quote insinuating this, serious questions need asking of your honesty.

Dubious (and cynical) claim 7: All criticism of Penguin is an attack on two hard-working writers

Now, one pattern you might have notice with the article is that I have not, at any point, suggested that the writers of the official Penguin parodies stole Miriam Elia’s idea. Nor have I held them in any way responsible for the way Penguin behaved. It’s been pointed out many times that they based their idea an earlier Ladybird Parody of their from 2003 – and guess what? Everyone agrees! Even Miriam Elia has effectively conceded that point. I know there’s an argument that Miriam first demonstrated a physical book like this could have a mass market and Penguin subsequently capitalised on it, but I don’t have a problem with that. If you show a market is viable, it’s legitimate for other people to take advantage of it. So I will say, yet again, that whatever shenanigans Penguin might be implicated in, Joel Morris and Jason Hazely deserved the success they got.

But I may as well be speaking to a brick wall. No matter how much I or anyone else goes of out their way to say it’s about Penguin and not about John and Joel, no matter how often we congratulate them for their achievement, virtually everybody who takes Penguin’s side is treating the slightest criticism of the publisher as personal attack against these two individuals. Responses will typically berate us for falsely accusing them of stealing someone else’s work even though we never said that.

It’s been argued that even if we specify that’s Penguin who’s to blame and not Joel and Jason, it’s still damaging them by association. But that’s a pretty feeble claim, and I’ve seen no evidence that anyone’s thought any less of them because of what’s been said about Penguin’s antics. At the very worst, it’s a small dent in their massive sales figures. And even if someone somewhere is somehow blaming Joel and Jason for Penguin’s lawyers, that’s nothing compared to the smears directed towards Miriam Elia.

The charitable explanation here is that this shouting down comes from friends of Joel and Jason in knee-jerk reactions to criticism of Penguin. But the paranoid side of me wonders if there’s something more to this. The aggressive and patronising nature of some of the posts makes me suspect they weren’t just trying to stop criticism going unanswered; they were trying to stop criticism of Penguin completely. But it’s not fashionable to leap to the defence of big corporations making legal threats against small-time artists. Far better to frame it as standing up for two hard-working artists and so you can pass off all criticisms of the corporation as a direct attack on them. Whatever the motives, using Joel and Jason as human shields for Penguin is cowardly. And I won’t stand for it.

Dubious (and outright poisonous) claim 8: Miriam Elia fabricated an underdog status in order to sell more books

This final thing, I must stress, is only being said by some, and not all, of the people defending Penguin. I am going to be kind to Penguin here and assume this argument has nothing to do with them – simply because my residual faith in humanity tells me that no vaguely reputable company would stoop low enough to claim this. But someone somewhere came up with the argument that Miriam Elia deliberately twisted the trust in order to make a false victim status for herself, in order to sell more books. That is utterly contemptible.

So this claim heavily relies on joining up most of the previous claims into one pretty toxic narrative. She fabricated a legal case that never was (i.e. it’s not legal action if the other side capitulates before court action), and Penguin were perfectly happy for the book to be sold without their trademark (i.e. we hope you don’t notice they carried on making legal threats about other things), and those nice people at Penguin allowed her to sell books with the trademark (i.e. a calculated legal concession intended to stop publication), and she said she was perfectly happy with it at the time (i.e. she said that once, if you interpret a cherry-picked quote a certain way). All rather convenient, cooking up this underdog status now, huh?

But even if you ignore everything I’ve written so far debunking this narrative, the idea Miriam Elia could be anything but an underdog is patently absurd. Penguin had the huge PR department, the pre-existing deals with book shops, the pre-existing links with journalists, and there’s no chance a self-publishing author can possibly match what Penguin was putting behind its intended Christmas #1. We hear how unfair it is that booksellers were encouraging people thinking of buying the official Ladybird parodies to buy We go to the gallery instead, but those are only anecdotal claims. I can give counter-examples shops up here in the north-east that only stocked Jason and Joel’s books and didn’t sell Miriam’s at all.

True, she has been helped enormously by the bad PR for Penguin, but ignoring the question over how much of Penguin’s PR disaster was self-inflicted, how much did it benefit her really? On the latest figures, Elia sold about 60,000 copies of the book – against 1,000,000 to Penguin. That works out about 16:1 in Penguin’s favour. An incredible performance for a self-published book, but still no doubt who’s David and who’s Goliath.

For Christ’s sake, 16:1. And still some people think it’s a terrible injustice against Penguin. I despair.

And finally … why should you worry about this

Does this prove Penguin are guilty as charged? Not quite. Who knows, if Penguin ever were to explain themselves, they might tell us things we don’t know about that absolves them of suspicion. But it’s going to have to be a very good explanation to overcome all of the evidence backing up what Miriam Elia is claiming. And I’m really struggling to think of any alternative explanations – the only semi-plausible scenario I can think of would have to involve massive massive massive incompetence of Penguin’s PR department. That does not vindicate everything Miriam Elia has done – she was still wrong to print a book with some else’s trademark without asking no even though other people had done it before, and I felt her “satirical” response to the grown-up Ladybirds was ill-advised – but it’s a hell of a lot more dignified than the excuses by proxy being made for Penguin’s actions.

But why such a fuss like this? It’s not like this did anyone any harm in the end. And yes, it is true to say that – whatever the their intentions may have been – Penguin’s stupid heavy-handedness was the best thing that happened to the artist they threatened – on this occasion. But is this the only occasion something like this has happened? Penguin’s swiftness to resort to litigation make me wonder if they’d done this before. Miriam Elia was lucky enough to have some journalists pick up the story and let the Streisand Effect work its magic; but perhaps the other targets of censorious litigation weren’t so lucky, and had no-one to tell the world what was going on. And given my reason to suspect that Penguin’s legal threats included intellectual property claims over things that weren’t theirs to claim, staying within the law won’t necessarily keep you safe. Take it from me, corporate legal teams are experts at reinterpreting laws into whatever they want, and with neither public support nor a legal team of your own, the pressure must be on to capitulate and let the big guy censor what they want to censor.

None of that surprises me. I’ve never trusted legal teams of large corporations, and quite frankly, I doubt anyone else does. What does surprise me is the lengths other people went to to defend Penguin; and this was not just an incidental defence from friends of Joel Morris and Jason Hazely, but a concerted effort to portray Penguin as 100% blameless, with some pretty nasty attempts to personally discredit Miriam Elia thrown in. Worst of all, the bulk of this has come from a writer, a musician, and an arts journalist – the very people you’d think would be the first to stand up for the little guys. (Their left-wing political affiliations aren’t that relevant, but it’s somewhat ironic.) Far more people sided with Elia, thank goodness, but the fact that these personal attacks came from the arts world of all places is shocking.

So this story had a happy ending. We had a reminder about the need for eternal vigilance against corporate legal intimidation. But I’m increasingly coming to the opinion that the greatest threat to artists’ freedom of expression no longer comes from governments, or lawyers, or corporations, or mobs. No, it now seems the greatest threat to freedom of expression comes from other artists. And if that’s true, it’s a very sorry state of affairs.

A note on comments: You are welcome to comment on this article whichever side you’re on, but I am going to be enforcing my Comments Policy rigorously. Last time, I was quite lax over personal attacks – I will be stricter this time. If you are Miriam Elia, Penguin Random House, Joel Morris or Jason Hazely, you are welcome to defend yourself as you please; likewise for any official representatives. But I’m not going to give such a free hand with pseudo-proxy representatives of Penguin this time, and the moment you cross the line into nastiness or abuse, I will stop it. You are free to explain why you chose to respond the way you did and/or where you got your information from, but that is not a free rein to to be abusive. I have never had to reject a comment on this blog before. Please don’t make this the first.

Advertisements

Leave a comment

Filed under Comment

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s