Cross Talk
Artbyte (New York) 1, no. 3 (August-September 1998), pp. 19-21
Jon Ippolito

Intellectual Property or Intellectual Paucity?

Last June 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

{INDENT}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]{END INDENT}

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 argued in my last Cross Talk column (Artbyte, June-July 1998) 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 in this issue 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 {ACCENT GRAVE ON THE "a"} 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 harm. 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 exhibited.

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 (, 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,, 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 {SMALL CAPS} 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 interaction.)

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, 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 ( 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 modification.

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.

For a different perspective on the relationship between art of the 1960s and 1990s, see Jori Finkel's essay TK on page TK.