Bitter Brew: Why The Hoodwitch Should Hex Starbucks

Starbucks recently introduced a “Crystal Ball Frappuccino,” presumably hoping for a sequel to its wildly successful Unicorn Frappuccino.

Here is Starbucks’ Crystal Ball Frappuccino Instagram post from March 22, 2018:

This Starbucks ad is clearly based on the distinctive images produced by Bri Luna, aka The Hoodwitch, for her web site, social media, and various collaborations.

Bri Luna is a distinctive witch. Her look, style, writing, and images do not fit popular stereotypes about what witches look like, what they wear, or how they act. Luna troubles the definition of “witch” and expands it to be more broadly inclusive. She’s intersectional and inspirational.

But Luna was not remunerated, consulted, or in any way involved in the production of the Starbucks ad. Understandably, Luna was pissed, as were her Instagram followers and fans.

Granted, most witchy imagery isn’t distinctive enough to merit this level of outrage. The stereotypical witch aesthetic is culturally pervasive – and thus ineligible for copyright protection – at this point in time. But black brujas with witchtips, a predilection for saturated colors, a penchant for glitter, and love of neon haven’t exactly reached critical mass on the internet or in the popular imagination. If Starbucks had gone with a black cloth, silver jewelry, and a milk-white hand, I’d probably be on their side.

But they didn’t.

If I say “crystal ball,” you’re likely to think “witch” or “fortune teller.”

If I say “witch,” you may think green skin, hooked nose, pointy hat, enjoys the company of flying monkeys.

If born after 1975, pale skin, black-clad, silver jewelry, dark lipstick, and a scowl may come to mind.

If you’re into millennial witchcraft, you may also think Free People, tarot apps, and palo santo perfume.

You probably don’t think:

 

or this:

It’s hard to call anything or anyone “original” in the twenty-first century, but Luna is one of the few people I laud with that accolade. Luna has greatly expanded what it means to be a witch. (So have lots of other witches, in lots of different ways, but that’s a different post.)

Yet, witchcraft remains a fairly small community, its internal aesthetic debates are not known to the broader public, and the singularity of Luna’s imagery is not likely to register with most Starbucks customers.

Thus, prospective Crystal Ball Frappuccino buyers aren’t likely to see the Starbucks ad above and think, “Hey, that looks like Bri!” They’re likely to think, “Oooo, that’s looks magical, fresh, colorful, sweet, and kind of badass.” But “magical, fresh, colorful, sweet, and [totally] badass” is Luna’s brand, her imagery, her vibe. And it’s highly distinct from other magical practitioners.

And that’s why Starbucks’ behavior sucks.

Ripping off an artist’s images to sell corporate coffee is poor form.

Riffing on witchcraft to sell corporate coffee is worthy of an eye roll, but this is not the first time that mysticism has unwittingly served capitalism.

Jacking an African-American-Mexican bruja’s photographs, concepts, and style, which have greatly changed how the witchcraft community sees its members, but are mostly unknown to the broader public…that’s a multi-pronged abuse I can’t dismiss.

Legally, it’s tough. Hypothetically, were Luna to sue Starbucks, a court would look at specific similarities between the Starbucks image and Luna’s images. There are plenty. Thus, most courts would consider “substantial similarity” and “total concept and feel” –  a doctrine developed for situations such as this one.

When considering total concept and feel, a judge is invited to consider both “intrinsic” and “extrinsic” elements.

“Extrinsic” elements are defined as “the type of artwork involved, the materials used, the subject matter, and the setting for the subject.” [Sid & Marty Krofft Television Productions, Inc. v. McDonald’s Corp., 970 F.2d 106 (9th Cir., 1977)] But…“Obviously, no principle can be stated as to when an imitator has gone beyond copying the ‘idea,’ and has borrowed its ‘expression.’ Decisions must therefore inevitably be ad hoc.” [Sid & Marty Krofft Television Productions, Inc. v. McDonald’s Corp., 970 F.2d 106 (9th Cir., 1977), citing Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2 Cir. 1960)] Translating this legalese: things can get fuzzy.

“Intrinsic” elements concern the judgment of “an ordinary person” when the expression of the works are compared. The comments on Starbucks’ Instagram post are divided, and suggest that witches see too much similarity, while non-witches don’t see a problem. Thus, we’re left with a question: who is the ordinary person? Someone familiar with Luna’s imagery or someone who is not? (Get nerdy about the identity of the “ordinary person” with me in the comments – it’s definitely an open question.)

I’m sure another lawyer could argue that the elements in each image are so simple that “total concept and feel” doesn’t apply. Or that the ordinary person is a non-witchy type who wouldn’t see Luna’s imagery as distinctive. But I think the Starbucks image clearly bites Luna’s style, in a way that might rise to the level of infringement. (And, before you ask, fair use absolutely does not apply here, as the Starbucks image has no purpose consistent with fair use.)

As you can see, the legal answer is a bit messy. But, ethically, it’s pretty straightforward.

Starbucks, a multinational corporation, decided to mimic imagery from an independent artist who belongs to numerous minority groups – African-American, Latina, witch – and seemed to think she wouldn’t fight back, that her fans wouldn’t notice, and that consumers wouldn’t care. (Given my interactions on Instagram, 1 out of 3 of my assumptions seem to be correct: Becky just wants her Frappuccino.) This is an abuse of power and this is wrong.

Starbucks most likely paid someone to source and create imagery for the ad. If they liked Luna’s work so much, they should have asked her to direct the project, take the photographs, or style the ad. At minimum, Starbucks should have credited Luna as the inspiration for the Instagram spot. And it’s all much worse because Luna actually lives in Seattle and has a robust online presence. She isn’t hard to find.

Finally, Starbucks posted the ad to Instagram, one of Luna’s primary modes of interaction, with no credit. Even a nod – “Inspired by @thehoodwitch” – would have gone a long way towards mollifying Luna’s fans (if not Luna herself). However, they would never do this, because it could weaken Starbucks’ position should Luna sue them for infringement. Which, frankly, should make you more suspicious than anything I’ve said so far.

As I’ve discussed before, there is aware appropriation and there is sterile appropriation. (The terms are Jaron Lanier’s and if you haven’t read his book, go do that right now.) Aware appropriation uses pre-existing material in ways that enliven the images or information, creating a new lens for the viewer or reader. It takes thought, feeling, and effort to be an aware appropriator. Sterile appropriation, on the other hand, repurposes pre-existing material in ways that are flat, serve only the appropriator, and have no intelligent effect on the audience’s engagement with the pre-existing material. Corporations almost always engage in sterile appropriation, but with a modicum of effort, entities like Starbucks can use their colossal influence in more positive ways.

It starts, as you might imagine, with crediting – and paying – artists like Bri Luna.

31 Responses

    1. Disagree- Starbucks is paying for education and providing for families – do YOU do that for millions of people? Plus they got magic on their side too, don’t be fooled

      1. Believe me. Peoole can do good things and still be fucking assholes and who tf cares if they have magic on their side? Who is that supposed to scare? Witches of color are strong as hell and need to fight back because this is exactly the shit they go through constantly. Starbucks and anyone else who sides with them can catch this rootwork.

  1. I don’t see any similarities. The world I filled with 6 billion humans. We all have very same taste. Also the witch wasn’t invented by anyone in our times, at lease.

    1. The similarities are equivalent to identical twins… It’s obvious you’re unfamiliar with the hood witch and her artwork/profile/websites. Witches have nothing to do with it unless you factor in the fact that starbucks(whomever is responsible for the ad) stole her whole visual concept

    2. I understand the issue and side w the hood witch but now it’s starting to sound like dark skin, acrylic nails, gold rings, and colorful witchy things can only belong to Bri. She may be the most well known for it but I follow dozens of accounts w the same aesthetic. Heck, that’s even my aesthetic, long before the hood witch’s fame. Does that mean we’re all infringing now too? That other POC witches, psychics and healers can’t photograph themselves w rings, nails and crystals? It’s a collective consciousness and that’s why we’re all so similar but no one should own the aesthetic.

      1. Good point, and I don’t believe that “dark skin, acrylic nails, gold rings, and colorful witchy things can only belong to Bri.” However, there are some specific images (which I’m not linking to because Bri has been advised not to do side-by-sides online, so I’m not gonna either) that are extremely similar. Once Bri’s situation is more settled, I’ll do the side-by-sides. I’ll also do another post on witches with similar aesthetics. Expect to see plenty of writing about witchcraft and appropriation here in the future.

        1. That doesn’t make much sense to me. Why wouldn’t you put them side by side? That only bolsters your case. Yeah tbh I find that this whole thing is Bri appropriating a culture by taking credit for an esthetic quality that has grown from many different humans uniquely. It’s actually starting to make me sick and it’s bad for both witches like us and actual cases of companies stealing art.

  2. Not to mention I probably has a shit ton of sugar. Do the witchy thing: hex ‘em and fuck capitalism!! Stay Fab!! Stay Weird!!

  3. I agree, but I think it would be helpful for readers who don’t know @thehoodwitch to see her original art, in order to understand the full scope.

  4. This sucks! I definitely won’t be buying anymore Starbucks shiz until this is resolved in Bri’s favor.

  5. Copying what?? I really don’t get it, cause she uses purple and glitter? Where is the image they ripped off? They ripped off her aesthetic?? She is not the first person to use a crystal ball she may be the first to capitalize and use it for her own good, to monetize and make witchcraft a tool to make her money,cause she a capitalist too! Selling 60$ blankets and rocks, but no she ain’t the only person allowed to use crystal ball imagery and to not even have an image they ripped off, to just say it’s her aesthetic is bullshit and the case will go nowhere..

    1. That’s exactly what I was thinking. It’s like if Jessie Paege (YouTuber) sued Starbucks for the Mermaid Frapp because they “ripped off her aesthetic” Nowadays no many (I don’t really want to say no one) is “original”. You can’t sue someone for using a crystal ball as marketing in a product because they “ripped off your aesthetic”. I no this is going to sound harsh but this is the most ridiculous, bullshit, and dumbest thing I’ve seen in a while. Like what has this world come to. I literally saw on instagram her “claim” was she knows she didn’t invent crystal balls and wasn’t the first to use them but Starbucks ripped of her aesthetic.

  6. This is fucking theft! How horrible! Hey, you know what they say—no growth without resistance. It seems that we’ve truly started Mercury in Retrograde with a bang! Sending Luna lots of love and courage. I truly hope she stands up for herself; and in that, people she represents: the small-scale artists making a name for themselves.
    Go forth and prosper, Luna!

  7. Hoodwitch is a capitalist. She is no witch selling sage and Palo Santo to any old customer just to make a buck, it’s not right, my nonna is a real witch and she laughs at this whole generation of capitalist little girls feeding the machine. She takes sacred things and sells them to finance her life, her self. You don’t sell sage and especially not to another witch, it’s bad luck to put a price on any natural herb and if she was a witch she would know this she is cursing everyone when you use money to facilitate a spell it’s void and unpure she is a capitalist, she thrives under capitalism, she wants clout and money pure and simple

    1. You do know that Brujas are akin to Native Americans & your implication blankets negativity across that whole entire spectrum, right? I’m only asking because I’m also Stregan (+ Bohemian & Celtic— all witches) & I was taught to always show respect towards all other practitioners & to use their gifts for my higher purpose. Personally, I feel honored to support Mz. Luna, as a fellow witch & also as a woman. Her products allow me to do very positive & uplifting work in & around my own community. You make her sound like she’s Amazon Prime or something & I don’t think that’s very fair of you to do. I’m just saying…

      1. How are brujas akin to Native Americans? We don’t have one specifically set culture, nor do we have unique customs that could be appropriated into American culture.

        Where does the Strega mention Brujas at all? The cultural connotations behind Bruja, Strega and Witch all have different meanings.

  8. I’m wondering how much Starbucks is paying all these Beckies and pretend bruja-granddaughters to slander Luna and her name? It is painfully clear Starbucks stole her aesthetic for their own greed machine and paying for an employee’s college education means NOTHING when the payment comes from stealing from the very same community they purport to help. Not to mention, they get massive tax credits for all that- so STOP pretending it’s charity on their behalf; it’s just smart accounting. I’m calling for an active BOYCOTT on Starbucks until they fess up & share. Not that any of us should be consuming their overpriced, GMO laden crap, ANYWAY. They wouldn’t have made that ad if it wasn’t for all the attention she’s been getting ANYWAY. And all you puppets? Karma is NOT a b*tch; it’s a circle. Rule of Three, Pendejxs.

    1. A boycott of Starbucks, whatever will happen if a few hundred people skip coffee for a week.

      Not everyone believes in the rule of three nor does it affect their practice. Ya cállate con esas tonterías de Rule of Three pendeja, if you don’t believe in that system it’s not gonna affect your working.

      Bri is just as much of a capitalist as they are.

  9. Yeah I get where she’s coming from but to say they stole her “asthetic” is pure bull. I was on her side when Nylon did it but this one I can’t get behind. It’s too vague.

  10. When I first saw this ad I thought it actually was Mz. Luna’s work & Starbucks’ was showing love to their hometown Bruja!!! SMH. Their proximity + likeness to her combined really is the most bothersome aspect, imo. The fact that she’s local & also gives back to the same community as them… Ugh, it’s just so wrong & also pretty hurtful. My heart goes out to Bri because I bet this felt crappy to her like how that Crappuccino probably tastes. I just hope nobody brings diabetes onto themselves from supporting all that sugar & evil capitalism, ya know? #supportsmallbusinesses #supportwomenentrepreneurs ?⚡️??

  11. I see comments where people are saying ripping off an aesthetic is not theft but in hip hop when a person rips off a “style” or an “aesthetic” we call that biting aka stealing and honestly if starbucks approached Ms. Luna for ideas and concepts especially considering that there’s an age old culture behind her craft this might not be an issue; but since they didn’t and instead they picked bits and pieces that they deemed suitable to produce their advertisement, im gonna call this exactly what we call it in the Art community when someone bites a craft that’s backed by an exstensive history with people who’s lives are built around that history. (CULTURE VULTURE) This isnt about coffee. The energy says that this is about an individual who’s truly passionate about her craft and it’s heritage refusing to see it be taken advantage of?☀? ?✨

  12. While I do agree on this piece, Starbucks may be liable to sue Bri Luna based on grounds in harassment since she quoted on her personal account “Hex Starbucks.” Even though Luna has the right to feel this sentiment, if presented in a court case Starbucks can easily shut down the case and say that Bri Luna instigated her followers to attack the corporation because it would be deemed as a threat.

  13. I didn’t get to read everyone comments to see what was said, it’s a bit overwhelming. I’m really upset with the person in charge of creating an image for Starbucks new drink. I’m sure there’s different departments in cooperate Starbucks. The person in media/ advertising should have common sense to reach out to you. I’m sure he or she was looking through insta for inspiration. It’s so easy to direct message an artist on insta.

  14. I think many of the commentors on here who “don’t get it” have not seen the side by side comparison. Do some research by looking at her page. It literally is the same picture with a hand moved in placement as the SB ad.

  15. I’m all for originality but I see no comparison images, thus not providing real proof of plagiarism. Seems like another publicity stunt for attention. I wanna back this article 100% but I see no proof!!! Where’s the side by side???

    1. As noted above, I deliberately excluded comparison images in this post, which focuses on the ethics of Starbucks’ behavior, not the legal status of its ad. Bri has taken the comparison images she previously posted offline. This is post is not a hypothetical legal analysis of hypothetical legal case. (Which is what side-by-sides turn into real quick.)

      You can see plenty of Bri’s work at http://www.thehoodwitch.com/, http://instagram.com/thehoodwitch, and https://www.facebook.com/thehoodwitch/, or via the links in the post.

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