Joseph Franklyn McElroy Cor[porat]e [Per]form[ance] Art[ist] on Wed, 17 Apr 2002 21:43:23 +0200 (CEST)

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<nettime> Re: RHIZOME_RAW: why art should be free 2/3: the digital sanctuary

> Why Art Should Be Free [part 2 of 3]
> can you destroy artistic property without destroying art?
> The answer is with an open license. Open licenses have rarely been applied to
> art8, but they've been a driving force behind much of the software that runs
> the Internet.9 The archetype for open licenses is Richard Stallman's GNU
> Public License, which when attached to a piece of software guarantees that
> all works based on that software must inherit the same freedoms embodied by
> the original. Such freedoms can include a requirement that the source code be
> *transparent* to anyone who wants to see how it was made; that it be
> *recombinant*, meaning that anyone can recombine elements of the original
> product to make a new one; that it be *credited*, so there is a record of all
> the collaborators who may have modified an original product; and finally that
> it be *circulating*, that recipients of the code not attempt to prevent
> others from freely distributing any derivatives based upon it.10 
> While all of these terms are potentially applicable to code-based products
> like Internet art, the last criterion is applicable to any form of open
> culture, from paintings and sculpture to academic research and argument.
> Soon, artists will be able to learn about and apply such open licenses,
> thanks to the efforts of a group of affiliates of Harvard's Berkman Center
> for Internet and Society11 who will soon launch a clearinghouse for open
> licenses at
> I'm not proposing that creators be locked into open licenses for all their
> projects. Individuals could choose on a project-by-project basis which works
> to be open licensed and which to be distributed based on the closed terms of
> traditional property. I'm just not sure there's a good reason to call the
> latter work art; "commercial art" strikes me as a contradiction in terms.

I am sure that most would agree that whether Art is sold or not does not affect 
its artistic value.  Choosing to deny artistic merit based upon legal 
definitions seems to have no good reason. 

> "You can't fight capitalism," I hear some readers say. "The art market has
> assimilated corners of fat and scribbled blackboards by Josef Beuys, even
> though there's little evidence he wanted them sold. If a dealer wants to sell
> your work, they will." 

Because people will always find ways to make and sell souveniers from a 
memorable experience.  These corners of fat and scribbled blackboards are just 
tokens, souveniers from a performance long past.  Since they are rare 
souveniers, they are very collectable.  High art collectors would hate to 
realize that they are not much better than the fat women in loud shirts 
collecting Elvis memorabilia. Sounds like you are going to have to outlaw those 
little figurines of the Statue of Liberty, just because the blue lady in the 
park does a dance dressed as Lady Liberty.  The point is, I could care less if 
someone wants to own the peice of cardboard I draw a picture on.  It is a 
souvenier and they are welcome to it.  If I am quick and smart, I might sell it 
to them as a setup fee to some online service that they are required to buy 
yearly (this is all experiments in business models) However, I don't want 
anyone to own the knowledge I acquired and distribute freely on that drawing.  
Knowledge should circulate. 

>Yeah, unless you make it illegal. The GNU Public
> License uses a strategy called copyleft--an ingenious twist on copyright--to
> enforce openness. Creators of copylefted products retain their copyright so
> they can sue anyone who tries to constrain access to work they distributed
> for free. Open licenses won't put dealers and appraisers and the rest of the
> middlemen out of business. But it will release the lock the market has on
> deciding the fate of art--just as GNU/Linux has released the Microsoft's lock
> on the fate of software. 

The big problem in my opinion is that software should never even have had a 
copyright.  Copyright is for an expression, patents are for ideas.  Software 
should always have been covered under patent law and not copyright law.  Now we 
have to make up all sorts of conditional clauses to get something to fit that 
doesn't.  Perhaps Open Source is just the worlds way of giving birth to a new 
category of protected intellectual value without losing a needed benefit to 

The Internet itself, with or without Open Licenses, has the capability of 
putting the middlemen out of business (if the government lets it).  We can 
address the problems of the art market by educating/organizing producers and 
penalizing unscrupulous marketers. 

Open Source is meant to solve the problem of freedom of knowledge and the 
circulation of intellectual property.   It won't free artists in general.  It 
does have some limited applications in the network and software based arts 
arena, where software created by certain artists have a universal applicability 
that could be expanded and built upon.   

> But why would artists choose open licenses? How would they pay the studio
> rent and DSL bill? The same way their parents' and grandparents' generation
> did, the same way the overwhelming majority of them do now: a day job. Day
> jobs suck, but they help reinforce the line between the choices artists make
> for commercial reasons and the choices they make for their art. Ironically,
> Internet artists often complain about having to hold down a day job, despite
> the fact that they're the artists whose skills put them in the best stead for
> landing lucrative part-time jobs. Part of the problem is the expectations of
> comparable wage from the dot-com boom. Something tells me that Merce
> Cunningham and Nam June Paik never bitched about how much more money they
> could have made doing developees or smashing pianos for the commercial
> world.12

Instead of telling them to be wage slaves, how about convincing artists to get 
educated on the ways of business.  To devise and distribute business models 
that communities of artists can follow to counteract the power of the 
marketers.  The same hours spent in a day job could sure be effectively used to 
build small businesses.   

Market Research reveals that there was a 6% growth in the art market for 2001. 
The consumer market for one-of-a-kind art reached a staggering $31.7 billion in 
sales in 2000. Nearly 48 million U.S. households, or 44% of total households, 
reported buying some kind of art, print, poster or a picture in the past year. 
Source: Unity Marketing

Most of this is going to large corporations and spit-em-out artists like Thomas 
Kinkaide. Why, because institution and collectors look dimly upon the artist 
who desires to be a "high" artist and sells art at the frame shop, flea market 
or art fair at cheap prices (because it devalues the investment).  Still 
looking for the super stars who suffer for their art, or who graduate espousing 
an instructors favorite theories. 

Your very statement above - the disdain for "commercial art" IS THE PROBLEM.  
Sitting there, graduated from a nice school, good job - you can wax poetic all 
you like and scramble legal, academic, and emotional arguments with ease.  This 
romantic ideal of the institutions and academics are forcing all these artists 
to maintain impossible facaides of romantic lifestyles.   

Face the facts, there are no shamans, or romantic poets, or priests, or 
mystical masters of magnificence.  There are people who work hard to do a good 
job, think hard to create puzzles,  stay up late to make artwork, plan and plot 
on how to make themselves seem mysterious.   Just because the high art market 
has to present the romantic illusion -  the genius discovering marketing 

> Artists aren't the only ones whose illusions would be shattered by taking
> away the false promise of commercial success through selling art. Up to now,
> capitalist societies have been able to excuse their unwillingness to support
> artists by entrusting that responsibility to the art market. America, for
> example, ranks somewhere alongside Iran when it comes to public sponsorship
> of the arts: 6$ per capita, compared to Canada's $46, France's $57, or
> Germany's $85. Our policymakers don't see this as a problem because they're
> under the impression American artists make a living on the market. When I try
> to breathe some reality into the stratospheric deliberations of NEA chiefs,
> copyright registrars, and arts organization policy wonks, they look at me
> like I'm crazy in the head. Without the pretense of market compensation, the
> wealthy and powerful might be under a little more pressure to sponsor free
> health care, grants, and other mechanisms to sustain this invaluable cultural
> produc!

Yes, what every individual wants to live with...CHARITY.  I have lived at times 
and for different reasons both under government charity and corporate charity 
(investors).  These are not uplifting, creativity inspiring ways to live. 
Sorry, but fundementally people wish to be rewarded for what they do, not 
because they fit a certain class or definition.  Yes, make reasonable health 
insurance available, and provide funding for large projects - but don't put the 
stigma of charity on my head.  Especially not in a capitalist society.  Get rid 
of the false expectations that prevent me from selling bread-and-butter works 
to consumers.  Educate me on how to do business better.  Create and sponsor 
producer groups that compete against the marketers. 

> tion. But even if they don't, the difference would only be felt among the
> tiny percentage of artists who currently make any substantial living off
> their work. And even those artists wouldn't get pinched by the unfair laws
> preventing them from empowering themselves through giving.
> There are also individual benefits to giving--altruistic and economic. To
> exclude art from an exchange economy doesn't imply it will have no economic
> value; it's just that its economic value won't be determined by exchange.13
> I'm not talking about the benefits you get by being an Andrew Carnegie or
> John D. Rockefeller Jr. Those people gave with the expectation of getting
> something else in exchange: tax writeoffs, spin control, the ability to sleep
> at night. I'm talking about the currency of gift economies--communities that
> circulate rather than exchange gifts. Achilles and Odysseus had Kleos. The
> Impressionists of fin-de-siecle Paris had the Troc. Slashdot has egoboo;
> has experience points. They mean respect, they mean prestige,
> but they also mean people will listen to you and talk about you. And those
> things are just as important to the starving artist as the bread on his
> table. As writer Joline Blais puts it, to sell the products of artistic labor
> is to take away artists' power as the source of the gift.

Romantic illusions - the source of gift is a lack of fear, the power comes from 
confidence in abilities -  By creating myths that artists don't live up to, you 
sap their strength and take away the gift.  An artist who starts selling their 
art, starts thinking they have "given in", "sold out", "lost the loving 
feeling".  And you are only to happy to feed their depression and help send 
them on the way to oblivion - because it doesn't meet your standards of an 

> Kleos and egoboo don't pay the bills, but no middleman has a cut of them
> either. And they *can* lead to grants, commissions, patronage, and other
> financial rewards that aren't based on property14. Yet any creator who plays
> according to the rules of gift economies should be judged according to
> them--in the eyes of the Copyright office and IRS, among others. All of
> culture, whether protected by closed copyright or not--Mickey Mouse, Bart
> Simpson, the whole kit and kaboodle--should be fair game when it comes to
> appropriating material for an open-licensed work. Open-licensed artworks
> would have no clear sales value, and hence not be taxable as income or
> inheritance.15 If you get a grant to help you give more things away, you
> shouldn't pay tax on that money. The primary job of the executor of an
> artist's estate should be to give the inheritance away in the manner most
> consistent with the artist's intent.

First thing Disney will do is make sure it is ok for commercial entities to 
appropriate works from the gift economy, why because they will take all their 
real old stuff, about to expire in a year or two, and throw it into the gift 
economy.  Just what artists want, big conglomorates stealing from them at will. 

> There should also be consequences for the receivers of these gifts, who would
> be beholden to the circulation requirement of open licenses. For museums to
> acquire open-licensed art would require them to transform from collecting
> institutions to circulating institutions. This change would be just as
> dramatic for paintings as for online art, for museums commonly exhibit less
> than ten percent of the works in their collection; the rest gather dust in
> basements and warehouses. No schoolchild will ever see inspiration in a
> sculpture banished for eternity to a wooden box. Paintings on a warehouse
> rack are not common culture, but a dollar value in the assets column of some
> annual report handed out at board meetings. Art is cultural heritage, not an
> investment to be squirreled away in a vault as a form of commodity
> speculation. To acquire an open-licensed work, museums would have to
> drastically reshape their acquisitions policies to ensure the works in their
> collection spent the maxim!
> um possible time on public view--if not on their own walls, then on loan to
> other institutions. In return, however, such *circulators* would qualify for
> regulatory tax benefits of their own.16

The world won't allow the loss of billions of dollars worth of investment value 
because all of sudden there was a sudden influx of available artwork - scarcity 
would no longer be the rule of thumb.  I don't really care, let them keep their 
investments - but lets empower artists as well.  There is enough consumer 
demand for artwork for every artist to have a day job producing artwork - just 
stop making it a stigma to sell cheap.  In fact, the name "Creative Commons" is 
a much better name for a community of artist producers, organized to to sell 
artwork and bypass the marketers. 

> Voluntary licensing doesn't require any changes in intellectual property law;
> this is both its strength and its weakness. As the name "Creative Commons"
> suggests, open licenses have the potential to demarcate a public space immune
> from the restrictions of intellectual and physical property--in the same
> sense that a public park like the Boston Commons is a communal territory
> available to all citizens equally. 

Yes, but you can't crash a wedding there, or interupt a volleyball game, or 
stop a concert, or physically move someone from the bench, or a myriad of other 
ways people temporarily claim and are authorized to claim territory.  Open 
License for expression removes all legal power from the artist and is of no 
benefit to society.  Open License of knowledge has benefit to society.    

>But the rest of the digital world is
> already functionally a commons anyway--it's just not legally one. Software
> piracy is rampant; Napster and its variants permit unlimited music sharing;
> and Web designers routinely pilfer code from other online sites whether it's
> copylefted or not. 
> That leaves an enforceability dilemma for legislators. They could choose not
> to put any muscle behind enforcing their own laws protecting intellectual
> property, in which case those laws will only hurt law-abiding citizens. Or
> they could choose to enforce them by the only means possible: drastically
> curtailing the freedoms netizens currently enjoy in order to prevent
> unauthorized use of digital culture. Senator Hollings has already proposed
> such legislation: the Consumer Broadband and Digital Television Promotion
> Act. This act would mandate copyright-sniffing chips in every PC and make
> circumventing them illegal--effectively forbidding the sale of fully
> programmable personal computers and eliminating any hope of innovative
> approaches to recording, playing, cataloging, and distributing music or
> movies. To disable the Internet to save EMI and Disney is the moral
> equivalent of burning down the library of Alexandria to ensure the livelihood
> of monastic scribes. Unfortunately, the!
> se legislators don't know enough about the Internet to understand why
> Webarchivist and Google deserve more protection than Britney Spears and The
> Little Mermaid. It won't do artists any good to copyleft their movies if
> personal computers can only play videos produced by Hollywood studios.

Now this is an important issue and your are absolutely right.  This is horrible 
legislation and everybody should be up in arms about it. 

> The mutability of digital media creates another liability with voluntary
> licenses. Suppose digital artist Geoff Kuhntz scans a copyrighted postcard of
> seven puppies on a cushion, then uses Photoshop to replace all but one with a
> flowery background. Suppose Kuhntz then offers his image free of restrictions
> on a clearinghouse for open culture like He's free to do
> that, because his "transformative use" of the original image qualifies for
> fair use protection against a copyright suit. Another artist downloads it,
> agreeing to abide by the terms of the license. She decides it would look
> better if there were seven puppies instead of one, so she clones them--and
> wham, gets hit with a copyright infringement suit by the original artist. You
> can imagine the same scenario taking place in other media--for example, if an
> excerpted Philip Glass riff were re-sampled into a minimalist composition
> that rivaled the original, or if a work of online art that depended on
> rando!
> m combinations of image and text from other pages accidentally re-created
> something dangerously close to one of its victims' Web pages. For digital
> culture, fair use is a porous category, which makes open licenses no
> guarantee you won't be sued.
> As Creative Commons consultant Wendy Seltzer has observed, these practical
> obstacles don't necessarily mean the open license approach is wrong, just
> that it's incomplete. Modest readjustments are not an adequate solution to a
> legal framework that is out of touch with digital reality. To complement open
> licenses, we need not a legal or illegal intervention, but a meta-legal
> one.

> The solution I'd suggest to the digital liability of open licenses is as
> practical as it is radical: a "digital sanctuary." Digital objects are like
> rabbits--they reproduce easily. It is this promiscuity that creates practical
> problems for the commons approach. Let's say you take your pet rabbit for a
> walk in a public commons. If it gives birth, the offspring are still your
> property, and you can prosecute anyone who takes them from you. But if your
> promiscuous bunny's offspring happen to hop their way into a wildlife
> sanctuary, they could go from property to heritage--at which point your
> exclusive claim on them could vanish.
> The Internet could serve as such a sanctuary17 for digital creativity, if our
> legal system were to treat any snippet of culture that found its way online
> as communal heritage. The effect of this rule would be that any form of
> streamable18 creativity, be it a text file, JPEG, or MP3, is automatically
> copylefted. Streamable versions of fixed formats--such as the MP3 of a live
> concert or Quicktime bootleg of a movie playing in theaters--would be
> similarly protected, whether they were streamed by the fixed-format's rights
> holder or by an unauthorized fan.

Hmmm.  What about password and security protected systems hacked into?  What 
about private FTP sites discovered by criminals and opened up?   This would 
mean that I would pretty much have to deliver by hand any snippet I wanted to 
keep from being public domain.  In fact, the minute the snippet left the door, 
I am pretty sure it would enter the public domain.  The only entities capable 
of the finances required to prevent their snippets from entering the sanctuary 
would be large institutions.  Convenient for your organization I suppose. 

> While this proposal would radically change the judicial understanding of the
> Internet's role in stimulating innovation, it wouldn't change the actual
> everyday use of the Internet very much at all. Although you'd never know it
> by listening to Hilary Rosen and Jack Valenti, most citizens treat the
> Internet as a sanctuary already, surfing clear of online content that costs
> money.

The same percent who don't buy anything anyway.  

> In a global network, of course, enforcing open access--what Stanford cyberlaw
> guru Lawrence Lessig has called "copyduty"--may be as difficult as enforcing
> closed access. To this problem I propose a compromise. Hollywood, the record
> labels, and anyone else who wants restrict access to culture can try out
> innovative copy-protection schemes online, and hope that Jon Johansen doesn't
> crack them--or more importantly that his doing so doesn't cut into their
> profit margins. This "post at your own risk" policy would mean that the
> circumvention of locked culture would be legal, but not guaranteed. A pet
> owner may choose to walk her bunny through the sanctuary with a leash--but if
> that bunny wriggles and hops away, the owner has no legal recourse to getting
> it back. Should the bunny emerge from the sanctuary and re-enter normal
> space, the owner can again assert property rights--and the same would be true
> of digital culture. Under this system, netizens could post endless remixes of
> The!
>  Phantom Menace online with impunity, but once they tried to distribute them
> in movie theaters, George Lucas could sue them for infringement. 

Yes George Lucas could, but Joe Smoe down the street doesn't have the money to 
pay a lawyer to sue anybody. 

> The digital sanctuary is not a wilderness, but a wildlife refuge--not beyond
> the law, but protected by it. Legal paradigms like the protection of privacy
> and the prohibition on dangerous speech, which protect the public rather than
> rights holders, may still apply. We stamp out forest fires when they threaten
> parks; maybe we should also stamp out computer viruses that threaten the
> network. It's not entirely clear how to enforce these protections, but it is
> important to note that the copy-protection schemes proposed by Hollings
> aren't the way.
> Of course, the media conglomerates and their content providers can continue
> to make money off of the things that *can't* be streamed: immersive
> projections in big theaters, live concerts, leather-bound books you can read
> at the beach. Painters and sculptors would still have a choice of open or
> closed licenses for the products of their labor--they just couldn't enforce
> copyright over online digital reproductions of their work. For their part,
> Internet artists determined to make a buck could put digital leashes on their
> Web sites and hope for the best.19 Or they could be grateful for what they
> have: a refuge from property, poor in cash but rich in gifts.

Gifts dont' feed the babies.  Wage slave jobs don't feed the soul.  Open 
Licenses are not for expression, they are for knowledge.  

Joseph Franklyn McElroy 
Cor[porat]e [Per]form[ance] Art[ist]
Electric Hands, Inc
Electrify your sales, Electrify your Mind

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