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Perhaps the main causes of friction at the interface of digital art and intellectual property lie in the nature of the medium itself. Digital media is by definition computational media; that is media that may be not only the end result of computational processes, but may be composed of ongoing computational processes. More often than not, this computational nature introduces some level of fluidity and change into the digital art work in question. In addition, digital media are beholden to the separation of content from infrastructure that is required by the theory of a "universal machine" (a machine whose infrastructure may be reprogrammed to work with and produce almost infinite varieties of content; a computer).
Due to the fluid or variable nature of digital media, many digital art works are reconfigured each time they are exhibited. Even more to the point, many digital art works are reconfigured each time they are experienced and re-configured differently for each person experiencing them. They may be experienced differently when delivered across the Internet and presented on a vast range of home computers with custom combinations of network speeds, monitor sizes and settings, and media card capabilities. They may be instantly reconfigured because they are the result of user-input interacting with live computational processes that never produce the exact same results twice. Variability is an inherent property of digital media and one of the main capabilities artists are drawn to. Of course artworks in any medium change over time due to things like lighting or chemical decay, but digital media art changes more often, at a faster pace, purposefully, and in ways so immediately observable that they have direct implications for intellectual property.
One of the first legal concepts challenged by the variability of media is that of fixed form. No copyright law allows a creator to copyright an abstract idea, but rather requires a fixed form of expression for protection. Areas of commercial industry that regularly deal in liminal content like live broadcasts protect themselves by creating a recording of the broadcast, thus fixing the ephemeral content in a form worthy of copyright protection. Of course this concept has implications for artists who include live commercial media broadcasts in their gallery installations, but more pertinent and perhaps more complex implications arise around digital art. When digital art produces infinitely variable results every time, what is the fixed form of the work? For example, the UC Berkeley Art Museum and Pacific Film Archive has collected a digital art work, Landslide, by the artist Shirley Shor.Footnote 10 To produce Landslide, Shor wrote a custom software program that projects a variable never-ending visual map-like pattern of light on a sand-box installed in a gallery. The projection is not stored or recorded. In this case, the program itself may be copyrighted, but the visual output that many consider to be the heart of the artwork may not be.
While portability of content and variability of form are givens with digital media, the courts remain conflicted on how to address these issues. US case law illustrates this point well. For instance, in the now famous copyright case involving art, artist Jeff Koons was sued by photographer Art Rogers who claimed that Koons infringed Rogers' copyright by creating a sculpture of a row of puppies in the lap of a couple based on a photograph by Rogers of the same image.Footnote 11 One of Koons' defenses was to argue that since the original was a photograph and his work a sculpture, it was not a direct copy but a new work. The court decided against Koons, declaring that taking content across different media was irrelevant; Koons infringed on Roger's original image. However, the case Tasini v. New York Times seemed to cast a different light on this matter.Footnote 12 The New York Times had obtained copyright permissions from freelance writers for stories they first printed in the paper and then mounted on the NYT website. The writers contended that the publisher had paid for only the right to print their articles in the paper and did not have the additional permissions necessary to mount the articles online. In this case, format did matter, and rights obtained in one medium did not automatically carry over to others. Even more complicated was the Bridgeman Art Library v. Corel Corp. case that seemed to split this particular hair down the middle.Footnote 13 Bridgeman Art Library had produced reproductions of paintings from the collections of several museums and then Corel Corp. produced a CD-ROM using many of the images without permission from Bridgeman. The paintings were not copyrighted; they were in the public domain. However, Bridgeman claimed that the photographs of the paintings were themselves copyrighted as separate works. The court decided that this was not the case; that any simple reproduction of another work does not constitute a separate work. Interestingly, the ruling only applied to two-dimensional works that had been "slavishly copied" without originality on the part of the photographer. However, photographs of three-dimensional sculptures may be considered separate works with their own copyright because translating the image from three dimensions to two required originality from the photographer with regards to angle, lighting, etc. For some reason, Koons was unable to take this argument in the opposite direction. So, does format matter or not? From these three cases alone, it is very difficult for the cultural heritage professional to triangulate clear guidelines for practice and furthermore they illustrate the courts' own confliction on the matter.
The variable nature of digital media inflames ideas already familiar to the art world: authenticity, appropriation, versions, reproductions, and derivatives. Following are three of many possible examples of how digital art pushes to these ideas to the edge and raises immediate questions about intellectual property.
First, Lost Love by artist Chris Basset is a website where viewers are invited to contribute their own personal stories of lost love and read stories by others in a central database of stories.Footnote 14 No permission form or contract exists on the site currently. Lost Love is typical as a work of participatory Internet art and raises the question of whether various anonymous contributors from around the world retain copyright in their work. If each retains copyright to their own words, then will one need to obtain their permission each time the work is exhibited? What happens when the work is collected? What is the extent of their contribution? Should they get credit (the Moral Right of association) as co-creators of the work? Works that play with notions of decentralized authorship naturally also play with intellectual property.
Second, the software art project Carnivore was created by the artist team Radical Software Group is an open software "tool-kit".Footnote 15 Radical Software Group wrote a piece of software code that monitors traffic on computer networks and converts that data to output for use by secondary software interfaces. Other artists are encouraged to download the software and use it to create their own interfaces. These other works may look very different from each other, yet they are be based on the same software "engine". Modular and collaborative works are not uncommon in the digital arts, and they directly question traditional concepts held by the art world and legal community about originality and individuality. They intentionally confuse strictly defined notions about derivative works and about versions of works with the expected legal ramifications.
Last, Shredder is a digital work by artist Mark Napier. Shredder invites the visitor to type in the address of any website.Footnote 16 Shredder then copies that website, turning it inside-out in the process; changing the size and colour of fonts, text, and images, even revealing HTML code that normally hides safely behind the scenes of most websites. The result usually looks little like the original website; it is shredded. Shredder is a forum for variability. It is ever-changing not only because it takes on a different form for each web address, but it does so in real-time, reflecting changes in any one website over time as well. Digital artworks that appropriate content from other sources either asynchronously or in real-time are also not uncommon, and they raise questions about appropriation of content and derivative works.
As mentioned earlier in the paragraph about SFMOMA's poster project, digital art can incorporate many media forms into one work. Each form included in the work, from images to music to physical objects to games to code, may bring its own set of related copyright laws, agencies, and practices. Janet Cardiff's Eyes of Laura illustrates the compound nature of some digital art.Footnote 17 Bruce Grenville, Senior Curator at the Vancouver Art Gallery described Eyes of Laura as a work that exists on the Internet and includes elements of interactive storytelling and camera surveillance. The work incorporated a live video feed from the Art Gallery's surveillance camera and allowed viewers to move the camera. The work also included diary-like entries from a Gallery security guard. Although the gallery presenting this work is in Canada, many of the server software components were at first hosted by an Internet Server Provider in the U.S. Later, all components were moved to a Canadian host because of technical and intellectual property concerns. Since online visitors could change the view of the camera, did they have some rights in their "directorial choices"? If a person was caught on camera for this participatory art work, were their "performance rights" being violated even if privacy laws allow it? Since the video feed was not stored or recorded, did copyright apply here at all? To fully realize the implications of this one work, one could seemingly research the history of film and theater as well as copyright and privacy laws.
Nina Czegledy, Canadian independent curator stated that the visual arts organizations that are increasingly exhibiting and collecting complex media works are not as prepared as their performing arts cousins to deal with multiple compound rights. Czegledy went on to cast this relative blank slate as an opportunity. If there is little precedent in the visual arts for dealing with compound rights, then the visual arts community has a chance to establish an intellectual and legal model that makes sense for the artists, the works, and the organizations involved. But this chance may only be realized if the arts community accomplishes two acts it is not known for doing well. First, the arts community and especially larger organizations like museums, must become pro-active about political and legal affairs. Many museums often shy away from political advocacy because of a parent organization such as university, government, or foundation that would prefer to maintain neutrality on such divisive external matters. Museums rightfully understand that they can influence society at large, but usually through the much slower means of cultural change. While it is true that cultural debates about larger social values around property will serve a purpose, intellectual property law in the digital age will not afford the luxury of much time. Those external forces are at work shaping law now, and while some activities and some debates may be conducted within the confines and control of the art world, copyright is not one of them. Next, the art world must reconcile the inherent variable nature of digital media with its own time-honoured models for acquiring and preserving works of art. Museums especially act as the heroic bodyguards for works of art, staving off the effects of time and change in order to preserve the integrity and accuracy of historic evidence. Though this strategy has served well, with digital art, museums must regard change as part of the solution, not the problem (for detailed recommendations in this area, see the Variable MediaFootnote 18 and Archiving the Avant GardeFootnote 19 projects). It will not be fortuitous if the oldest thing museums preserve from the past is their way of conducting business.
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