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\begin{document}


\title{Copyright, Copyleft, Art and Other Misunderstanding}

\author{Florian Cramer}


\maketitle







When we discuss Free Software and art, the implication often seems to be
as if artists had to catch up with Free Software. Quite the reverse is
true though if we look, for example, at Situationism. From 1958 onwards,
publications of the Situationist International included the following
copyright notice:

\begin{quote}
    All texts published in Situationist International may be freely
    reproduced, translated and edited, even without crediting the
    original source.
\end{quote}

This is, in modern terms, a proper free or open source license by
granting

\begin{enumerate}
\item freedom of using a work,

\item freedom of studying a work,

\item freedom of redistributing a work

\item freedom of modifying a work.
\end{enumerate}

These are also the freedoms, or user rights, defined as essential in the
Free Software Definition, the Debian Free Software Guidelines and the
Open Source Definition of the Open Source Initiative. The situationist
license therefore fully qualifies as a Free Software, Open Source or
Open Content license.

Beyond the mere distribution policy, Situationist poetics themselves
were centered around appropriation and modification of found material,
which the Parisian situationists defined as ``détournement''. 
%% A
%% simple example was a situationist film which consisted of a kung-fu
%% movie overdubbed with marxist theorizing. ``Détournement'' was a
%% hybrid of Brecht's epic theatre with its method of ``estrangement''
%% and collage techniques of 20th century avant-garde art including
%% futurism, dadaism, surrealism and pop art.
The situationists themselves
appropriated, or detourned that concept from Lautréamont's definition of
plagiarism:

\begin{quote}
    Plagiarism is necessary. Progress implies it. It approaches the
    sentence of one author, takes its expressions, removes a false idea
    and replaces it with a better one.
\end{quote}

Already in 1886, Lautréamont does not simply conceive of plagiarism
simply as doubling or accumulation of information, but --- if you like
- as a critical process of collective peer review and improvement of
work. What Lautréamont describes here is, in modern terms, the
concept of a patch, or of collaborative editing such as in Wikipedia.
His saying could be smoothly plagiarzed, detourned, appropriated
into a principle of Free Software development: ,,Free Software is
necessary. Progress implies it.  It approaches the works of one
programmer, takes its code, removes a false construct and replaces it
with a better one.`` This exactly describes the way Free Software like
the Linux kernel is being developed. 
%% --- On the other hand, Free Software
%% also has its own negative notion of plagiarism which applies when
%% somebody illegally puts free code into a piece of proprietary software.

In the late 1980s, a whole current of subcultural artists plagiarized both
the Situationists and Lautréamont under the umbrella of plagiarism. 
Activities often involved shared names and identities:
the fanzine SMILE that everyone could publish, the pseudonyms Monty
Cantsin and Karen Eliot (later taken up by the Luther Blissett and
Netochka Nezvanova projects). 

%% Its main voice was the fanzine SMILE which could be
%% published by anyone. (Picture SMILE 8). The name SMILE was a travesty
%% of the General Idea's Canadian arts magazine FILE which itself had
%% been travestied by the Mail Art zines BILE and VILE.  Since 1983,
%% SMILE appeared in more than one hundred issues, each of them often
%% plagiarizing the other, and created by people
%% who assumed the collective identities of Monty Cantsin or Karen
%% Eliot (later reinvented by the Luther Blissett and Netochka Nezvanova
%% projects). 

These activities culminated in a series of ``Festivals of
Plagiarism'' that took place in London, San Francisco and Glasgow
between 1988 and 1989.

%% Finally, the whole multiple name concept of Monty Cantsin and
%% SMILE was plagiarized by the Italian Luther Blissett project in the
%% early 1990s, and in turn plagiarized by the Netochka Nezvanova project
%% in late 1990s net.art.

%% The institutional and media conditons of the Festivals of Plagiarism are
%% almost emblematically visible on a photograph shot on the Festival of
%% Plagiarism in Glasgow 1989: It is situated in an alternative gallery,
%% the machine in the foreground is a xerox copier, and the exhibition
%% consisted of xeroxed pamphlets, newspaper collages and self-made
%% t-shirts. What is not visible on the photograph are other media like VHS
%% video and audio tapes. In other words:  All media and technologies are
%% analog. As an interesting detail, computers have been used only in order
%% to create analog artefacts, with the single exception of a computer game
%% programmed and contributed to the festival by Graham Harwood. Although
%% this is a Festival of Plagiarism, no one seems to have realized or
%% reflected the radical implications of digital media technology for copy
%% culture.
%% 
%% Through the gallery space and the use of media, the festival situates
%% itself clearly in the visual arts. On the other hand, the media and
%% technologies used are emblematic of subculture and non-professional art.
%% 
%% \begin{itemize}
%% 
%%   \item The xerox copier is the multiplication technology of fanzine culture
%% 
%%   \item Collages and xerox copies are the main media of Mail Art which
%%   itself remained largely a network of amateur artists * Audio tapes
%%   were the typical medium of self-produced underground music in the
%%   1980s.
%% 
%% \end{itemize}

However, this plagiarist subculture remained in a ghetto where it only
recycled itself in underground collage art. It never succeeded with its
claim to
aggressively challenge the art world. 
John Berndt, participant of the London Festival of Plagiarism, left
with the impression that ``a repetitive critique of 'ownership` and
'originality` in culture was juxtaposed with collective events, in which
a majority of participants [...] simply wanted to have their 'aesthetic`
and vaguely political artwork exposed.'' His collaborator
tENTATIVELY, a cONVENIENCE concluded that ``Festivals of Recycling might
have been more accurate descriptions'' for the events: ``By virtue of
calling the act of reusing and changing previously existing material
(not even always with the intention of critiqueing said material)
'Plagiarism` the appearance of being 'radical` could be given to people
whose work was otherwise straight out of art school teachings.''

It seems as if this history is repeating itself today, almost twenty
years later, with free licensing and (chiefly digital) art. The chief
misunderstanding among artists seems to be that 
free licenses may legally protect their appropriations of third-party
material -- rather than being a radical practice of giving up the traditional,
object-trading art system, art production and artist identity. They are
looking for the solution to a problem that 20th century art created
itself. When art was granted,
in Western cultures at least, an autonomous status, artists were --- to
a moderate degree --- exempt from a number of legal norms. Kurt
Schwitters was not sued for collaging the logo of German Commerzbank
into his ``Merz'' painting which yielded his ``Merz'' art.  Neither did
Andy Warhol receive injunctions for using Coca Cola's and Campbell's
trademarks. As long as these symbols remained inside the art world, they
did not raise corporate eyebrows.

%% Experimental artists embraced the Internet just because it did away
%% with the separation of white cubes --- in which logos and trademarks
%% were safe from being mixed up with the original ones --- and the outside
%% world.  Mainly thanks to the Internet, artistic simulations of corporate
%% entities were believable for the first time. The Yes Men could pose
%% as the World Trade Organisation and get invited to World Economic
%% Forum as WTO representatives, 0100101110101101.org could tactically
%% disguise themselves as the Nike company.  It was the World Wide Web, not
%% happening and performance art (which mostly boiled down to objects later
%% sold on the art market) that radically tore down walls between art and
%% non-art practice, producers and consumers. Since then, former consumers
%% were held liable as producers, and artistic production became subject to
%% non-art world norms, as obvious in the FBI investigations of Steve Kurtz
%% and ubermorgen.com for bioterrorism, respectively tampering the U.S.
%% presidential elections.

In the Internet, the rules of the game have changed because appropriated
signs are no longer contained in white cubes. (The toywar of etoy.com, 01's
``Nike Ground'', the FBI investigations of Steve Kurtz for bioterrorism
and ubermorgen.com tampering the U.S.  presidential elections through
``voteauction.com'' are prime examples.)

But free licenses offer no solution to the legal risks of
appropriations.  They were not meant to be, and aren't, a liability
insurance against getting sued for use of third-party copyrighted
or trademarked material. Whoever expects to gain this from putting
work under a a free license, is completely mistaken. Yet some of
their advocates make misunderstandable claims.  When Lawrence Lessig
characterizes the Creative Commons licenses as ``'fair use`-plus:
a promise that any freedoms given are always in addition to the
freedoms guaranteed by the law,'' this is technically correct, but
nevertheless misunderstandable, especially for artists who aren't legal
experts. Putting a work under a Creative Commons, GNU or BSD license
means to \emph{grant}, not to \emph{gain} uses on top of standard fair
use. In other words, those licenses do not solve the problem of how
not to get sued by Coca Cola, Campbell's or Nike at all.  Non-free
third-party material cannot be freely incorporated into one's work no
matter what license one choses.

This example reveals a crucial difference between software development
and most artistic practice:  Programs can be written that look and behave similar
or identical to proprietary counterparts as long as they don't use
proprietary code and do not infringe on patents and trademarks.
This way, AT\&T's Unix could be rewritten as BSD and GNU/Linux, and
Microsoft Office could be cloned as OpenOffice. Free
software development could be an ``appropriation art'' without
infringing copyright.

For artists however, it makes little sense to restrict their uses ot
material whose copyright has either expired or that has been released
under sufficiently free terms. The Coca Cola logo can't be cloned as a
copylefted ``FreeCola'' logo, and it would be pointless for the Yes Men
to pose as an ``OpenWTO'' or for 0100101110101101.org to have run as
``GNUke'' instead of Nike. 

If even harmless collaging, sampling and quoting -- in other words,
``recycling'' -- becomes a legal problem, this is a larger political
matter of fair use, not of free licenses.

And finally, there is a second great misunderstanding, namely a mix-up
of free licenses and collaborative work.

This misunderstanding goes back Eric S. Raymond, founder of the ``Open Source
Initative'' (http://www.opensource.org), the group that coined the term
``Open Source'' in 1998. The main advantage of the term ``Open Source'' over
``Free Software'' is that it doesn't merely refer to computer programs,
but evokes broader cultural connotations. ``Open Source'' sparked
an all the richer imagination as Raymond didn't simply pitch it as an
alternative to proprietary ``intellectual property'' regimes, but as a
``Bazaar'' model of open, networked collaboration. Yet this is not at all
what the Open Source Initiative's own ``Open Source Definition'' says or
is about. Derived from Debian's ``Free Software Guidelines,'' it simply
lists criteria licenses have to meet in order to be considered free,
respectively open source. The fact that a work is available under such a
license might enable collaborative work on it, but it doesn't have to by
definition.

In other words ``Open Source'' has been wrongly pitched as a model of
networked collaboration and carefree use of third-party material
instead of radical user rights and political resistance to ``intellectual
property''.  This also may explains the huge gap
between the lip-service paid to ``open source'' in the arts and humanities and the
factual use of free software and copylefts. Most media people who talk
about ``open source'' don't know what precisely they're talking about.
``Cultural'' free software conferences whose organizers and speakers run
Windows or the Mac OS on their laptops are the norm. With
few exceptions, art education hardly ever involves free software, but
is tied to proprietary software tool chains. Yet --- often vague or
ill-informed --- ``Open Source'' references abound in media studies and
electronic arts.

This gap between theoretical lip-service and practical knowledge might
have to do with the fact that free software is no magic bullet.  It has
its strength in building software infrastructure: kernels, file systems,
network stacks, compilers, scripting languages, libraries, web, file and
mail servers, database engines. 
%% It lags behind proprietary offerings,
%% for example, in conventional desktop publishing and video editing, and,
%% as a rule of thumb, in anything that isn't highly modularized or used a
%% lot by its own developer community.

Similar rules seem to apply to free information, respectively ``Open
Content'' development. The model works best for infrastructural, general,
non-individualistic information resources, with Wikipedia and FreeDB
(and lately MusicBrainz) as prime examples. Similarly, the cultural
logic of sounds and images circulating under free licenses is largely
that of stock music, stock photography and clip art. 

Beyond software,
infrastructural information and publishing that waives reproduction
rights, the value of free licensing is somewhat doubtful. Experimental,
radical art and activism that does not play nice with third-party
copyrights and trademarks can't be legally released and used under
whatever license anyway. 
%% For professional artists, this simply means to
%% acknowledge the reality of contemporary art economics: that artists,
%% with the exception of a handful of stars, no longer live from producing
%% material goods (for which copyright granted lifetime monopolies, or
%% at least the illusion of continuous revenue streams), but like 17th
%% century project entrepreneurs from commissioned projects whose material
%% products have little or no market value by themselves. 
%% 
And for most other artists,
copylefting work simply means to give it away rather than buying into
false hopes of eventual art stardom and art market sales.

The rhetoric of ``free culture'' argues with questionable references
to a copyright-free, supposedly natural status quo of human culture.
Since the Russian cultural theorist Michael Bakhtin glorified, much
in tune with 1920s/1930s cultural politics, folk culture, its absence
of ownership and ``dialogic'' remixing, and since the anthropoligist
Marcel Mauss wrote about ``gift cultures,'' anti-copyright culture is
fueled by romanticized images of a precapitalist status quo.  But
often enough, proprietarization just affected different forms and
media. Medieval troubadours, for example, claimed individual ownership
of their rhyme meters instead of the texts of their songs. The Latin
poet Martial accused a competitor of a ``kidnapping'' --- plagium --- of
his lines, thus coining the term plagiarism. Without romanticist and
essentialist justifications, anti-copyright culture needs to be defended
as a calculated contemporary choice of giving away one's work.

\end{document}
