Post-Internet Art

The World Wide Web is 25 years old this year. UK computer scientist Tim Berners-Lee first proposed the concept in March 1989, and by November that year he had achieved the first Internet communication between a Hypertext Transfer Protocol (https) client and a server.

Berners-Lee was knighted in 2004, and celebrated as “Inventor of the World Wide Web” during the 2012 London Olympics opening ceremony where he personally composed and sent a tweet “This is for everyone” that appeared on LCD lights fixed to the audience’s seats. ‘Everyone’ includes artists who, forever embracing and engaging new techniques and technologies, have developed what is now becoming an established ‘art-historical shift’: Post-Internet Art.

Post-Internet Art occupies the replication and dissemination territory that is the sine qua non of the non-visual cultural industries. But the economic environment of visual artists has always been distinguishable from most other creative artists who rely upon replication and dissemination their works for income generation, be they musical composers or writers or film-makers. Visual artists chiefly and traditionally make and exhibit and sell unique or limited edition objects. Replication and dissemination of creative works relies on the existence and enforcement of national and international copyright laws in order to ensure that creative artists receive economic rewards for commercial public communication of their original works. Copyright laws also by definition automatically give artists legal rights to prevent unauthorized replication and dissemination of their works – not only during their lives by also for decades after death.

Often described as both a shield and sword, copyright laws enable all artists to be proactive and enter the market and sell copies of their works; or to be reactive and take legal action to prevent others from merchandising copies of their works (unless copyright licence fees are paid). Would-be users of pre-existing images of other artists (that are protected by copyright laws) need to exercise care to ensure that such appropriations do not violate copyrights of original artists.

In March 2014 the Ullens Center for Contemporary Art in Beijing mounted an exhibition of Art Post-Internet. Arts Council England will soon inaugurate Opening Times, a vehicle for commissioning online art.  London’s Tate Modern, New York’s Whitney Museum of American Art and New Museum, have all commissioned internet-based art and the latter curates regular monthly on-line exhibitions of works that ‘engage technology’. London’s Serpentine Gallery now has a bespoke post of digital curator. Lunch Bytes is an online platform for art and digital culture, and its founder Melanie Bühler explains: “Net Art really came into being in the mid-1990s and then it was a group of artists that actually didn’t want to be affiliated with institutions [who] conceived of the internet as a space where they could express themselves freely aside from institutions, so there was a notion involved of creating something entirely of their own.” In effect, a show of digital art can be mounted and ‘toured’ around the world for little or  no money.
A current example of an online work is Lincoln 3D Scans, 2013, by Oliver Laric. Laric scanned archaeological objects owned by the city and county museums of Lincolnshire in England to make ‘the collection available to an audience outside of its geographic proximity and to treat the objects as starting points for new works. All models can be downloaded and used without copyright restrictions’. US-based Petra Cortright has gained prominence as an online artist in recent years, chiefly through a series of webcam films made by internet surfing and ‘using whatever I can get my hands on’. Rafaël Rozendaall is a leading online artist, also US-based, whose works can be freely accessed, and be bought if collectors so wish via online contracts specifying precisely how bought works may be used.
In this context it is valuable to consider the use made by many artists of copyright licences developed and made freely available online by Creative Commons. A US-based not-for-profit-share organization founded in 2001, Creative Commons ‘stewards legal and technical infrastructure that maximizes digital creativity, sharing, and innovation’. The organisation publishes free of charge a range of copyright licenses that permit authors in all art forms to publish their works and specify rights they reserve to themselves, and uses they permit for the benefit of recipients or other creators. In other words Creative Commons licences are based on copyright, but do not require would-be users to negotiate bespoke terms and conditions of use with copyright owners.

By 2008, around 130 million copyright works were licensed under Creative Commons, and by 2011 Flickr hosted over 200 million Creative Commons licensed photographs. There are four main Creative Commons licences. Attribution (BY) requires attribution to the original author. Share Alike (SA) allows derivative further works to be made under the same or a similar license. Non-Commercial (NC) requires that the work is not used for commercial purposes. No Derivative Works (ND) allows only the original work to be used.

Copyright laws of most countries automatically permit a degree of appropriation of other artist’s images for defined limited purposes including private research and study, criticism and review, news reporting, and advertising art for sale; and fair use or dealing. What amounts to fair use/dealing is not normally defined by legislation, and is judged by courts on a case by case basis. Art lawyers are regularly asked – by clients worried that their works may be ripped off, as well as by clients who want to use other artist’s images – to assess whether appropriation of other artists’ pre-existing images is would be a violation of copyright. Whether the client is a potential victim or violator, no definitive answer can be given; only an indication of what courts are likely to judge on the look of the images in that particular case. Potentially hazardous and legally complex challenges are faced by artists who make their works available online, and especially by those whose practices involve appropriation of other artist’s images.

In January 2014 the US-based College Art Association published the results of unique research into copyright law’s doctrine of fair use in relation to visual art practice: Copyright, Permissions and Fair Use among Visual Artists and the Academic and Museum Visual Arts Communities: An Issues Report. The  report ‘reveals a situation in which uncertainty about copyright law and the availability of fair use, particularly in the digital era, has made many practitioners risk-averse, too often abandoning or distorting projects due to real or perceived challenges in using copyrighted materials.’ US and UK copyright laws are similar in relation to visual artists, as are their fair use/dealing provisions; and it is likely that the issues highlighted by the report are similar if not the same for practising artists in both countries. So it is significant to artists in both countries that the US-based Mellon Foundation has recently granted $630,000 to the College Art Association to create a guide for fair use of visual art. The publication will be available free online in 2015, and is intended to provide practical guidance not only for artist practitioners, but also for art publishers, curators, museums and galleries.
Meanwhile Sir Tim Berners-Lee has just called for a global Bill of Rights for users of the Internet.

© Henry Lydiate 2014



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This article is from the Artlaw Archive of Henry Lydiate's columns published in Art Monthly since 1976, and may contain out of date material. The article is for information only, and not for the purpose of providing legal advice. Readers should consult a solicitor for legal advice on specific matters. Artists can get free online legal information from Artquest.