Audiences, Participants, and Co-Authors
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It has already been mentioned that digital art is often interactive, inviting collaboration and viewer participation. It is useful however to briefly discuss how this might differ from other art forms and the special considerations that may bring for intellectual property. In addition to source code, other primary elements of digital media that distinguish them from other art media are the degree and number of ways to create social and material relationships between artists, audiences, and artworks. All art can be said to be interactive in ways that range from spiritual to intellectual to material, but digital media art is commonly interactive in ways the leave permanent observable traces of the audience's interaction. These traces can be so prominent and so core to the work that they bring intellectual property implications. Interaction with digital art can be seen as a continuum that ranges from the passive observer of a work to the audience participant invited to contribute content to a full blown artistic collaborator whether self-selected or invited.
The reasons behind the prominence and degree of interactivity in digital art are covered in many publications and papers, but a few are worth mentioning again here. The technical complexities of digital media often require collaboration and digital tools, especially networks like the Internet, provided a means for increased collaboration. Parallel to the late twentieth century development of digital media, post-modern theory was developing in the literary arts and spreading into other fields. Post-modern theory emphasized, among other things, the idea that the author of a work is not the final arbiter of the meaning of the work; that the reader has a role in defining and completing the work. This deflating of the role of the creator and the rise of the audience were ideas that quickly spread into all forms of art, especially the media arts. Along the same time, technical innovations in digital media were providing to large numbers of people the tools to become creators of content instead of merely consumers. Desktop publishing produces self-published zines. iMovie produced home filmmakers. Camera phones turn callers into photographers. Blogs turn diarists into public writers. Content production and sharing tools were in the hands of those with little awareness of (and perhaps little use for) copyright. Social practices and values were emerging from both the artist and the audience and converging in digital media. Not too much later, these practices would later run up against copyright.
All of this and more served to create a digital culture of re-mix and sharing that is exemplified in digital art practice. Howard Besser feels that this gives rise to the most important practical copyright consideration for the digital arts, underlying and attribution rights. Underlying rights are the rights of creators of content that is incorporated into a new work. Underlying rights come up with music that is re-mixed using other music. They come up when advertisements are used in collage works (which, in a way, describes both works by Kurt Schwitters and the Shredder mentioned above). They come up when 'found objects' or images are incorporated into a work (the way they were with Garnett's Molotov). Besser added that copyright law as currently instantiated acts as an inhibitor to this kind of creativity and that this inhibition finds its way into cultural practice not only through the fear of lawsuits, but also cultural institutions like museums that are increasingly asking artists to indemnify them against claims of underlying rights. Anne-Marie Zeppetelli, Collections Archivist at the Musée d'art contemporain de Montréal agreed that when artists do not clear underlying rights, it can become a problem for the collecting institution as these issues work their way up the line. For instance, Jill Sterrett added that in a joint project between SFMOMA and the Tate Gallery to loan media art between museums they specify that each museum is responsible for indemnifying other borrowing museums against such claims concerning underlying rights.Footnote 27
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