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Intellectual Property

A version of the following piece appears in the most recent issue of
_Artbyte_ magazine.

"Intellectual Property or Intellectual Paucity?"
Jon Ippolito

Last summer the Getty Conservation Institute invited me to speak at one of
those UNESCO conferences with incredibly ponderous titles, in this case
the "World Conference on the Implementation of the Recommendation
Concerning the Status of the Artist." Included in my conference packet was
a document recommending a system that would guarantee artists "exclusive
rights" to ensure that they "maintain control" of their work. As the
bureaucrats who drafted this document admit, guaranteeing these rights
won't be easy in the digital age. Fretting about "any distortion,
mutilation, or other modification" of an artist's work that might be
"prejudicial to his honour or reputation," they ask

"How should the author's *paternity* right (the right to authorship, the
right to the name) be safeguarded in a digital environment when his works
may be subjected to substantial transformation or manipulation of their
contents? [Emphasis in original]"

The bureaucrats are right to fret. To insist on this patriarchal model of
authorship based on cultural paternity is not only to perpetuate an
outmoded economy in the digital realm. It is also to guarantee that
digital art will never amount to more than a pale reflection of painting
and sculpture. The author's rights that protect blocks of marble and
oil-smeared canvases will prove impossible to enforce for all but the most
conservative forms of digital art--bitmapped collages, scanned-in
paintings, and the like--and even for those conservative forms it is only
established artists and middlemen who will profit.

For the rest of us, the solution lies not in legislation but in
imagination. As a curator, I have argued elsewhere that museums could
retain their critical role in twenty-first century visual culture only by
abandoning an object-oriented paradigm for collecting art. As an artist, I
will argue here that digital artists have to jettison exactly the same
assumptions about *making* art.

Where can we artists look for new models of art making, if not over a
couch or on top of a pedestal? As in the case of preserving digital art,
the best paradigm for creating and distributing new media is not painted
cloth and chiseled marble but the typewritten postcards and radio-wave
installations of the 1960s and 70s. As I read over UNESCO's working
document, I was amused to note that the authors cited reproduction,
distribution, and communication to the public as the three acts whereby
digital transmission threatened artists' rights. I say amused because it
is precisely these three acts that artists like John Baldessari, Sol
LeWitt, and Douglas Huebler reexamined and redefined during the transition
between Minimalist and Conceptual Art--decades before the invention of the
personal computer.

Let's take these three acts one at a time. Reproduction isn't even an
issue for most painting and sculpture; part of the value ascribed to the
_Pieta_ is the assumption that no sculptor's hand could ever successfully
copy Michelangelo's. (The hideous plaster miniatures arrayed in tourist
traps outside the Vatican lend ample credence to this assumption.)
Fortunately, the geological stability of marble as a medium guarantees
that there should be no need ever to reproduce the _Pieta_ provided it is
kept away from unstable people with sledgehammers. On the other hand,
reproduction is a much bigger quandary for digital art, where it presents
a double bind. For a document like a Web page that is easily transmissible,
there is little to keep a receivers from modifying it as they see fit and
then redistributing the "improved" copy in place of the original.
Conversely, artists who make work exclusively for cutting-edge equipment
with limited availability may find that the relentless pace of
technological obsolescence has made their work *unreproducible*: how
long will it be before the SGI Oxygen that drives the hottest programs
today goes the way of the Mac 512k, Amiga, and other digital dinosaurs?

Fortunately, Conceptual artists invented a way out of the twin specters of
modification and obsolescence: mutability. John Baldessari, for example,
created a painting consisting of a plain gray canvas on which was written
the location and date of that painting's first exhibition (_A Painting
That Is Its Own Documentation_, 1966-). This statement by itself would
have been little more than an exercise in solipsism, but Baldessari
stipulated that the second time the canvas is exhibited, another canvas
must be appended to the first that details the second venue and date, and
so on for all subsequent venues. As the painting contains--no, consists
solely of--its exhibition history, it will look different every time it is

What Baldessari's strategy suggests for digital media is that artists give
up making work for the latest software or hardware, which is bound to
obsolesce. Instead of worrying about preserving their work in its current
form, they might allow their work to evolve over time--even if it implies
that some aspect of the shape or look of the work may be beyond their
control. An example of this in the digital realm is Tom Ray's _Tierra_
project (http://www.hip.atr.co.jp/~ray/tierra/tierra.html), in which
self-replicating computer algorithms evolve on a computer hard drive
independently of the actions--and hardware--of the programmer.

The second artistic act that digital transmission throws into question is
distribution. Many Internet artists, for example, seem to want total
control over the look of their Web pages they produce--the kind of control
artist Donald Judd demanded of Minimalist fabrications in his 1965 article
"Specific Objects." Absolute control over the visual output, however,
contradicts the inherent structure of the Internet, which was built on
transmitting information rather than pixels. That's why the same Web page
looks different to different users: most browsers let you choose the
default text size, background color, and even whether to load images at
all. Control-freak designers who scan in their own fonts as a graphic file
are wasting their time as well as their users': the resulting "text"
cannot be selected or searched and takes forever to download.

Again, Conceptual Art offers an alternative approach. Consider a Sol
LeWitt wall drawing, which is executed according to a set of instructions
like "ten-thousand straight pencil lines, twelve inches long, not
touching." To purchase this piece is not to acquire a physical object that
will never vary, but to acquire instructions that can be applied to walls
of varying sizes and shapes. The result may be somewhat different from
installation to installation, but whatever remains common to all of
them--in this case, the visual complexity generated by such an elegant set
of directions--is what the artist is passing on to his audience.

A digital artist who has been influenced by the form--as well as the
strategy--of LeWitt's wall drawings is John Simon. In Simon's Java applet
_Combinations_ (1996, http://www.numeral.com), users can select the
initial angles and lengths of four sets of colored lines; his applet then
draws all their possible permutations. While Simon leaves his viewer in
control of the exact configuration of lines, paradoxically his algorithm
creates a broader range of visual possibilities than he could have with a
fixed image. In Simon's _Every Icon_ (1996), the algorithm gets simpler
and the range even broader. Here users see a flash of changing pixels as
the applet begins the Herculean task of displaying every possible
combination of black and white pixels in a 32 x 32 grid. Providing the
viewer waits long enough, _Every Icon_ will generate a pixelated version
of every possible image, from the Coca-Cola logo to the Mona Lisa to a
picture of the viewer's own face. In so doing, the applet will transgress
countless individual and corporate copyrights--but that is simply because
Simon's visual invention is so fundamental that it spans an entire visual
domain. The basic level at which _Every Icon_ operates means that it can
be just as effectively be viewed on a 10-foot high videowall or on a
handheld Palm Pilot--thus eliminating concerns that the work may someday
fall prey to technological obsolescence. It is instructions, rather than
specific objects, that are the natural paradigm for conveying artistic
meaning in digital form.

The final act referred to in the UNESCO document is "communication to the
public." You would think there'd be no cause for concern about the impact
of digital media on this artistic function; after all, the whole reason
for the invention of the Internet was so that scientists and scholars
could communicate more easily. So a photo on the Internet should have an
easier time reaching a large audience than a landscape on the auction
block. What worries many digital artists, however, is not how many people
will see it but who will get credit for it. When 16th-century Romans
questioned Michelangelo's authorship of the _Pieta_, he sneaked in one
night (as the story goes) and chiseled "MICHELANGELO FECIT" into Mary's
marble cowl. Digital watermarks are a bit harder to see (and easier to rub
off), which makes it very easy for unscrupulous artists to download
someone else's photo and pass it off as their own work. How is the artist
of the original photo to prevent the public from destabilizing the market
for her work?

Again, the answer may be not to fight such destabilization but to
encourage it. In the 1960s and 70s artists explored many relationships
with their audience that were a lot more interesting than simply "I make,
you buy." Since the 1970s Sol LeWitt has created a series of "democratic
drawings" made from folded paper and altered maps whose price is permanently
 fixed at $100 (take that, art market). While most of Lawrence Weiner's =
ephemeral language-based installations can be bought and sold via
certificates of authenticity, he has entrusted his piece BROKEN OFF to
public freehold--thus "breaking off" any claims he or anyone else might
have to future ownership of the work. Robert Morris was ticked off at a
collector who had never paid for his art work _Litanies_ (1963), so he
created a new work (_Statement of Aesthetic Withdrawal_, 1963) that
includes a notarized statement in which Morris claims to withdraw from
_Litanies_ all aesthetic quality and content. (No doubt this act brought a
shudder to all those who place artistic intent paramount among the sources
of aesthetic meaning.) In one of the most elaborate examples of a
Conceptual artist provoking a new relationship with his audience, Douglas
Huebler announced in 1969 that he was adding $1,100 to the reward for the
capture of outlaw Edmund Kite McIntyre, who was already wanted by the FBI
for bank robbery. Any collector who bought the piece acquired not only the
wanted poster with Huebler's affidavit, but also the responsibility for
paying the reward. (One can only assume that Mr. McIntyre would have been
less than pleased to learn of Huebler's latest innovation in artist-public

If Conceptual artists could move from authors to instigators, then surely
digital artists can too. A good example of this is Keith Tyson's _Replicators_
 (1996, http://adaweb.com). Tyson built a physical sculpture in his =
studio, then posted a verbal description of that sculpture online along
with an invitation to the public to build sculptures based on his
description and post photos of them at the same online site. In this
elaborate game of telephone, Tyson is inviting the public to screw around
with his idea, rather than vainly trying to safeguard the integrity of his
original object. Programmers such as the GNU collaborative (http://www.inf.
tu-dresden.de/gnu/gnu.html) have pioneered a similar strategy called
"copyleft." Although the growth of the Internet was encouraged by people
freely exchanging online software, now that people are trying to make
money on the Web there are plenty of budding young capitalists willing to
download freeware with the aim of repackaging it and selling it to others.
According to the ingenious strategy of copyleft, programmers who don't
want this to happen maintain their copyright to a particular program,
stipulating that their copyright will not be violated if the code is
passed on or improved in any way--but that it *will* be violated if
someone repackages the code to sell it or otherwise impede its distribution and

I don't mean to imply that the author--along with all her artistic
copyrights--entirely evaporated during the 60s and 70s. It is more that
the author function was skewed away from a centralized aesthetics toward a
distributed one. A reliance on the latest technology gave way to an
interest in a system that could evolve over time; an emphasis on specific
objects gave way to an investigation of instructions as an art form; and
the role of the artist as communicator to the public gave way to the
artist as instigator of public events.

Artists and arts administrators should stop wasting time trying to impose
conventional copyrights on digital media. Their time would be much better
spent cracking open a book on Conceptual art, where they would find
solutions invented in the 1960s to problems that didn't surface till the
1990s. Maybe then they would realize that object-oriented models of
intellectual property are impediments to, rather than protectors of,
artistic imagination.

Jon Ippolito