Like many libertarians, I’ve learned a lot from Murray Rothbard on a wide variety of subjects. Of course, no one gets everything right, especially someone as intellectually ambitious, multidisciplinary, and prolific as Rothbard. Nevertheless, reading the work of the man who left such a mark on the modern libertarian movement is as profitable as it is pleasurable.

While rereading For a New Liberty (first published in 1973) recently, I confess I was puzzled, which is not the frame of mind Rothbard normally leaves me in. In deriving property rights, he used the example of a “sculptor fashioning a work of art out of clay and other materials.”

Here’s the passage that had me scratching my head:

Let us waive, for the moment, the question of original property rights in the clay and the sculptor’s tools. The question then becomes: Who owns the work of art as it emerges from the sculptor’s fashioning? It is, in fact, the sculptor’s “creation,” not in the sense that he has created matter, but in the sense that he has transformed nature-given matter — the clay — into another form dictated by his own ideas and fashioned by his own hands and energy. Surely, it is a rare person who, with the case put thus, would say that the sculptor does not have the property right in his own product. Surely, if every man has the right to own his own body, and if he must grapple with the material objects of the world in order to survive, then the sculptor has the right to own the product he has made, by his energy and effort, a veritable extension of his own personality. He has placed the stamp of his person upon the raw material, by “mixing his labor” with the clay, in the phrase of the great property theorist John Locke. And the product transformed by his own energy has become the material embodiment of the sculptor’s ideas and vision.

I find it odd that Rothbard wants us to ignore, even if only for the moment, the “original property rights in the clay and the sculptor’s tools.” It’s odd because to establish the sculptor’s ownership of the finished work of art, all we need to know is that he owned the clay and tools. The artist’s inspiration, creative genius, and labor — while undoubtedly important to the production of the finished product — add nothing to our ability to determine who owns the sculpture. If he owns the inputs, he owns the outputs. Period. (I elaborate on this in “Intellectual ‘Property’ versus Real Property.”)

As Rothbard acknowledges, when we talk about creation, we don’t mean it literally, as though a product comes from nothing. As libertarian thinkers have always understood, when we create things, we only change other already existing things from a less valuable (useful) form to a more valuable (useful) form. (At least that is the goal.)

Rothbard intends his example to demonstrate the injustice of depriving the sculptor of his product. He apparently thought that emphasizing the artist’s creativity would be the clearest way to highlight that injustice. “By what right,” he asks, “do [others] appropriate to themselves the product of the creator’s mind and energy? In this clear cut case, the right of the creator to own what he has mixed his person and labor with would be generally conceded.”

Again, he seems to derive ownership of the final product from “the creator’s mind.” Yet his second sentence, which is actually in tension with the first, indicates that we cannot ignore who owns the inputs. Had the sculptor mixed his person and labor with clay he stole from someone else, we could not conclude that the sculptor owned the final product simply because he exercised creativity and exerted effort. (He might have exercised creativity and exerted great effort in stealing the clay.) And if it would be wrong to steal the sculpture when the artist owned the inputs, then it would be equally wrong to steal the inputs themselves — before the creative act occurred. Ownership of the inputs is both necessary and sufficient for ownership of the outputs. References to mental processes add nothing to the story.

Now, I realize that Rothbard asks us to ignore the ownership of the inputs used by the sculptor only for the moment. A page later he focuses on who owns the clay:

The man or men who had extracted the clay from the ground and had sold it to the sculptor may not be as “creative” as the sculptor, but they too are “producers,” they too have mixed their ideas and their technological know-how with the nature-given soil to emerge with a useful product. They, too, are “producers,” and they too have mixed their labor with natural materials to transform those materials into useful goods and services. These persons, too, are entitled to the ownership of their products.

Of course, if the producers of the clay sold it to the sculptor, then ownership was transferred to the sculptor, and as noted, that’s sufficient for legitimate ownership of the final product.

But note that even here Rothbard muddies things when he mentions that the producers of the clay “mixed their ideas and their technological know-how” in the process of making the clay. Why talk about ideas and know-how to establish ownership of the clay when it’s enough to say that the producers acquired the land through purchase or homesteading (or lease or gift). The contents of their heads add nothing to the matter.

Why am I making such a big deal of this? Surely, Rothbard understood that if you mix your labor with inputs you legitimately own, then you necessarily also own the outputs. My concern is that his repeated references to the producers’ ideas, as though they are essential to establishing ownership, introduce confusion into his analysis. He inadvertently reinforces the erroneous notion underlying patents and other forms of so-called intellectual property (IP). Someone who believes that ideas are essential to establishing ownership of products might be tempted to think that ideas themselves are products subject to ownership. Ridding ownership theory of the intellectual element will help to avert the IP mistake. (Again, this is not to deny that ideas are important to all human action.)

Rothbard did not make the mistake I refer to. He rejected patents. According to Rothbard, no independent inventor could be legally barred from making and selling his product because someone else had already come up with the idea for that product. That position constitutes a rejection of intellectual property. However, in The Ethics of Liberty, he argued that the copyright principle is applicable to inventions as well as to literary and artistic works. Thus inventors could reserve the right to copy their products. The prohibition on copying would not be merely part of the contract between buyers and sellers. For Rothbard, all third parties would be also affected, even someone who found the product after it had been abandoned. The finder, in Rothbard’s view, may not legitimately copy the product because the right to reproduce it has been reserved by the inventor (or to whomever the inventor transferred the copyright to). Presumably, the product would display the copyright symbol to notify everyone that this right has been reserved and therefore does not adhere to the object.

This, to say the least, seems peculiar because, like today’s patent law, it would permit inventors to dictate to others — who entered into no agreement — how they may act with respect to their own physical property and with respect to other people. For example, if I saw a wheelbarrow, for which the inventor had claimed to reserve the right to reproduce, I would be legally prohibited from fashioning my own wood and metal into that form and from selling it to someone else without the inventor’s permission.

How would that be consistent with the natural right to be free from aggression? How would it be consistent with the right to ownership through homesteading and other legitimate acquisition? (For a discussion of the problems with the reserved-copyright approach, I refer readers to Stephan Kinsella’s Against Intellectual Property. Also see his “The Case Against IP: A Concise Guide.” For refutation of the claim that IP is necessary for innovation, see Michele Boldrin and David K. Levine’s Against Intellectual Monopoly.)

For the sake of justice and freedom, we ought not to falsely found ownership on ideas and creation.