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ArtTable, a national organization dedicated to the visual arts and women’s leadership in the field, launched a year-long series of public programs on April 8 with “The Digitization of the Art World: Are New Media Artists Transforming Art Practice and How We Think About Art Itself?” Heather Corcoran, Executive Director of Rhizome, opened the event at the School of Visual Arts Beatrice Theatre in Manhattan with a historical overview of new media and a description of trends within this practice. Framed by this introduction, panel members described diverse methodologies: Marina Zurkow presented animations and installations that probe the relationship of humans to the rest of the natural world; Wafaa Bilal, an artist displaced from Iraq after two wars and now living in New York, described his confrontational, interactive performance piece Domestic Intention (2008); and Brad Troemel discussed his relationship to art-making as a subversion of the gallery/museum complex through the remediation of images in the open space of the internet.

I attended this presentation with the College Art Association’s executive director, Linda Downs, to gain further understanding of how artists understand and consider rights in the works they produce, particularly as it relates to fair use. Unfortunately, little mention was made of this concept during presentations. Nor was it defined in any depth during the panel’s wide-ranging opinions about ownership. Alexandra Darraby of the Art Law Firm, whose practice focuses on guiding creators towards licensing their works, was the final presenter prior to the panel discussion. Darraby’s presentation only briefly acknowledged that fair use exists, even though it is an important part of the Copyright Act. Rather, she referred repeatedly to creators having a monopoly on their works, and asserted the need for artists to ensure that their work is properly licensed so that it can be monetized and protected. Those in the audience without knowledge of their legal right to reuse a copyrighted work under certain conditions could not have left the presentation with a sense of that possibility. While Darraby’s postulated thesis adheres to some works created by, on, or through the internet, it did not represent the full range of legal advice for artists.

For example, Zurkow’s work makes use of ActionScript coding that she develops with programmers. In Mesocsom (Wink, Texas) (2012), thousands of lines of script create a dynamic scene that changes based on constraints such as season or time of day. This type of complex, collaborative project should define the roles and rights of the participants to clarify future use of the project and any financial benefit that might derive from it. A polar opposite legal assumption is found in the work of Troemel, who upends the idea of ownership, like many of his generation, through constant reframing of material found on the internet. Troemel articulates his vision through his writing: “On one hand exists a utopian vision for art on the Internet, a world where intellectual property is part of a commons, where authorship is synonymous with viewership, and where the boundary between art and everyday life is fluid” (“Art After Social Media,” lecture given at MoMA PS1, March 22, 2012). Zurkow’s and Troemel’s distinct approaches are only two examples in which an understanding of fair use might benefit both creator and user.

The College Art Association is working to define a balanced consideration of fair use principles through its Task Force on Fair Use, supported by the long-standing CAA Committee on Intellectual Property. Recently awarded a preliminary grant from the Samuel H. Kress Foundation and a multi-year grant from the Andrew W. Mellon Foundation, CAA embarked last fall on a comprehensive research project to identify and disseminate best practices in the fair use of copyrighted works under current U.S. law. The resultant code will represent the ways in which creators and their works are protected by law and act as a guide for when and how a copyrighted work may be reused by another artist or by a scholar, teacher, or museum professional. The project will include interviews and focus groups comprising representatives from every corner of the arts community and will be carried out by Pat Aufderheide, University Professor and Director, Center for Social Media, School of Communication, American University; and Peter Jaszi, Professor of Law and Faculty Director of the Glushko-Samuelson Intellectual Property Law Clinic of the Washington College of Law, American University. Consultants to the project include Gretchen Wagner, formerly General Counsel, ARTstor; Jeffrey Cunard, CAA Counsel and Partner, Debevoise & Plimpton LLP; Virginia Rutledge, art historian and copyright lawyer; and Maureen Whalen, Associate General Counsel, J. Paul Getty Trust.

ArtTable should be applauded for posing complex questions in a public forum. Answers to the problems faced by artists in considering authorship, collaborative work, open source, and the purpose and value of art today aren’t easily answered. In a post to Rhizome’s events page, Meredith Niemczyk posed a question about this presentation: Are there new strategic, economic, and legal models for applying protections in digital art without stifling originality? (Rhizome Community Announcements, Monday, March 25, 2013, http://rhizome.org/announce/events/59353/view/) The answer to this question is yes. The qualification of this answer must be defined in such a way to promote creativity while protecting ownership rights and the fair use of works by third parties.

ArtTable’s next panel, “How Are Museums Using Digital Technology to Advance Education and Exhibition Practices?” takes place on Monday, June 24, 6:00 p.m., at the Sony Wonder Lab, 550 Madison Avenue.




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