<nettime> (fwd) Is it safe to publish yet?

[Slobodan Markovic <twiddle@EUnet.yu>]

Permanent location: http://www.alistapart.com/stories/safe/

IS IT SAFE TO PUBLISH YET?
Opinion by Jeffrey Zeldman

It was a busy week for Jason Kottke, creator of 0sil8.com
(http://web.0sil8.com). First he authored  "Harnessing the Whoosh,"
last week's lead article here in A List Apart
(http://www.alistapart.com/stories/flash/). Then he hatched a new
0sil8 episode which parodied the current ad campaign for the new
PalmV organizer by 3Com. The Palm campaign features product shots
mortissed over "tastefully" nude women, who sit contemplating
their well-organized and breathlessly glamorous lives beneath the
giant headline, "Simply Palm." Kottke's parody exaggerated the
ads' banality by strategically placing the product over the
naughty parts of found pornographic images. His headline: "Simply
Porn." Within hours of launching the web page, Kottke heard from
3Com's lawyers, who demanded that he remove the work on the
grounds of trademark infringement.

This is not the story of "The Man" versus the independent genius,
nor is it an elegy for free expression, crushed beneath the Gucci
jackboots of our corporate culture. This is a brief inquiry into
the nature and limits of web publishing.

What is the web, anyway? Is it art? Is it an extension of the
free press? The answer seems to depend on who is suing who.

But is it art?

In the world of fine art, creative appropriation goes legally
unquestioned. The French establishment press was horrified when
Marcel Duchamps contributed a found object -- a urinal, in fact
-- to an art exhibit in the 1920s; but the urinal manufacturer
did not press charges. The Louvre, which owns the Mona Lisa, did
not threaten Salvador Dali when he painted a moustache over a
reproduction of Davinci's famous portrait. Campbell's did not sue
Andy Warhol for painting soup cans in the early 60s, nor did Nike
rough up conceptual artist Jeff Koons when he signed his name to
one of their posters and sold it as an original work in the late
80s.

Koons has, in fact, made a career out of appropriation, and while
he was once sued by a photographer whose postcard had formed the
basis for a "Koons original" sculpture, by and large he has
gotten away with it. None of the artists mentioned went hungry;
in fact, they all got rich, and none of them was legally
compelled to share the wealth with Nike, or Campbell's Soup, or
the Louvre, or Pierre's Urinals.

By these standards, the web cannot be considered fine art; at
least, not in the eyes of the law. If a designer appropriates a
copyrighted image on a web page, he will be threatened with legal
action faster than you can say "cease and desist." In fact, your
humble author was menaced this way recently, after using an image
he wrongly believed to be in the public domain.

Like fine art, that web page was intended as a pure creative
expression; like much of the web, it generated not a dime of
income, nor was it intended to. But this non-commerciality did
not matter to the copyright holder, nor should it have. They were
right and I was wrong. The legal issue was resolved, as copyright
cases usually are, when I removed the image from publication.

If the web is not "art" by legal standards, can it be protected
under the same rules and guidelines as other forms of
publication?

The Reverend and the Smut King

In The People vs. Larry Flynt, the publisher of Hustler Magazine
was found to be within his Constitutional rights when he
published a parody ad which attributed all kinds of grotesque
misbehavior to the Reverend Jerry Falwell. The indignant Reverend
had sued on the grounds of defamation of character, yet the court
found for the defendant, in spite of the crudeness of Flynt's
parody. As it has before, the court ruled that Parody is
Constitutionally protected free speech.

If the web is an electronic extension of the press, then Jason
Kottke's right to commit parody would be upheld in court, if the
web designer had the means and the will to take on a large
corporation. But few independents have the means.

Last year around this same time, John Halcyon Styn stood up to
similar legal bullying for a Fruit of the Loom parody on his
Prehensile Tales site (http://www.prehensile.com). Styn fought
back, and won. We cannot know what would have happened in
Kottke's case. The web is so new that nobody, including its
creators, knows quite what it is, or where its legal limits lie.
As a society, we seem to be making up the rules as we go along.

Of Marx and Trademarks

In 1886, the U.S. Supreme Court ruled that a private corporation
was a "natural person" under the law, and was therefore entitled
to the same rights as a human being. (Santa Clara County vs.
Southern Pacific Railroad) By this logic, the right to own and
protect private property becomes the right to own and protect a
logo.

The paradoxes are fascinating. I can praise Nike's current ad
campaign, or protest its practice of building factories in
third-world dictatorships, but I dare not touch its logo unless I
am willing to face legal consequences. I can offer opinions on
Bugs Bunny or Mickey Mouse, but I cannot show either character
without securing legal approval and coughing up a hefty licensing
fee.

This protectiveness on the part of corporations makes sense. Why
go to the expense of hiring Neville Brody to design your logo if
any kid with Paintshop Pro  and a free Geocities account is
allowed to reproduce it? Why build a world-renowned image library
if any idiot (such as your present author) is allowed to
reproduce an image without paying for it?

Warner Bros. can issue a cease and desist if you offer
unauthorized Batman icons, even if those icons are freebies
(http://www.iconfactory.com). By the same logic, Warner Bros.
shelled out big bucks when a sculptor claimed that a living
statue in the film "Devil's Advocate" was copied from his
original artwork.  He who lives by the licensing fee dies by the
licensing fee.

The web has surely doubled the retainers of entertainment and
intellectual property lawyers everywhere. And the present U.S.
administration, which is beholden to friends in Hollywood, has
consistently come down on the side of the entertainment
corporations and their lobbyists. R-DAT, a promising digital
recording format of the late 80s, was roadblocked into oblivion
in order to pacify the fears of record companies; today, MP3
faces similar legal hurdles.

Where does that leave the independent content creator? What are
our rights, and where do we face legal jeopardy?

Some answers are obvious: don't slap the MacDonald's logo on your
page. Some are not so obvious: if I celebrate the three millionth
visitor served at zeldman.com by creating a Z which resembles the
golden arches, am I trespassing on the "property" of the
MacDonald's corporation, or engaging in Constitutionally
protected free speech? When does parody become trademark
infringement? And what of other kinds of appropriation, such as
collage? If a fine artist can do it, why not a web artist like
Josh Ulm or Francis Chan?

The lessons we learn as this story evolves will shape our
emerging medium as profoundly as HTML.

###

Copyright 1999 Brian M. Platz and Jeffrey Zeldman

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