{"id":561,"date":"2005-09-01T15:14:55","date_gmt":"2005-09-01T20:14:55","guid":{"rendered":"http:\/\/www.danziger.com\/articlesnews\/?p=23"},"modified":"2005-09-01T15:14:55","modified_gmt":"2005-09-01T20:14:55","slug":"new-frontiers","status":"publish","type":"post","link":"https:\/\/danziger.com\/?p=561","title":{"rendered":"New Frontiers"},"content":{"rendered":"

Sure, they’re cutting-edge. But the latest technologies in contemporary art can also be double-edged.<\/strong><\/p>\n

Hell. That\u2019s what it was like negotiating with an unusually difficult artist for the purchase of Heaven, a multimedia installation composed of cloud-patterned wallpaper, blue fluorescent bulbs, streaming Internet and video. Our client Lili, a collector who had no interest in anything created more than a week ago, wanted the piece installed in her home and agreed to a purchase price of $100,000.
\nOr so she thought.
\n\u201cThe price entitles you to license Heaven for a limited period of time,\u201d the artist declared. \u201cIt\u2019ll cost you an extra $25,000 to own it outright.\u201d
\nLili reluctantly agreed.
\n\u201cAnd that doesn\u2019t actually include the wallpaper,\u201d the artist continued.\u00a0 \u201cI store the design in digital format, and the purchase price covers just the electronic file.\u201d
\n\u201cHow much to make the wallpaper?\u201d our client asked warily.
\n\u201c$10,000.\u201d
\nLili consented, but then phoned us to make sure there were no legal surprises on the purchase. We began by requesting an indemnity from the artist in case Heaven infringed on anyone else\u2019s rights. This was of concern because the piece appropriated music and images from various sources. The artist flatly refused, and Lili asked us if this was a problem.
\nThe answer was maybe. If Heaven did infringe on the rights of others and she and the artist were sued, they could assert a \u201cfair use\u201d defense, which permits one to copy a work in certain, limited circumstances, even if it technically constitutes copyright infringement. According to the 1996 Copyright Act, a determination of fair use involves the delicate balancing of a number of factors, most importantly: (1) the purpose and character of the use, including whether it is of a commercial nature or for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or the value of the copyrighted work.
\nWhen we asked Lili who would hold the copyright to the piece, she said that she thought it was included in the extra $25,000 the artist was charging. We cautioned that ownership of a physical work of art and ownership of its copyright are entirely separate, and without the copyright, she couldn\u2019t reproduce the work (or exploit any intellectual property rights) without the artist\u2019s permission.
\nNot surprisingly, the artist wanted a lot more money to sell the copyright. As a compromise, we tried persuading him to grant our client a non-exclusive copyright (fairly standard in such acquisitions), so both parties could reproduce it. Sales agreements often stipulate that the artist give the buyer the \u201cnon-exclusive license to reproduce the work in any media now known or not yet invented and to display, transmit, publish and otherwise use the copies throughout the world.\u201d In Lili\u2019s case, she even offered to pay for this limited right.
\nThe artist wouldn\u2019t budge.
\nLili next asked if she could make an exhibition copy of Heaven since she might loan it to a museum.
\n\u201cNo way,\u201d said the artist. \u201cI own the copyright. You can\u2019t make copies.\u201d
\nWe patiently explained that it is customary in multimedia art for a collector to make an exhibition copy and to store the original work in a safe place. That way, an extra copy exists in case the original is damaged.
\n\u201cAll right,\u201d retorted the artist, \u201cbut I will make the copy and require payment each time I make one, and each time it\u2019s exhibited. At the end of every exhibition, I will destroy the copy.\u201d
\nHe then demanded that Lili link up to his server so that it could run the work\u2019s Internet component. He insisted on being paid a premium for the time and resources involved in acquiring the necessary server space, maintaining his computer, scanning for viruses and reinstalling the piece if it were hacked. \u201cOf course, I\u2019ll decide if and when to actually stream the material for Heaven,\u201d the artist added.
\n\u201cIf he\u2019s in control of the piece, why am I paying for it?\u201d our frustrated client demanded.
\nWe convinced the artist to agree to broadcast the Internet material for at least 10 years. He remarked that over the course of that period, he might decide to make changes to the work. Lili initially objected to the artist\u2019s tinkering with his \u201coriginal\u201d (an elusive term in the context of new media, where an artwork can be said to originate in different places, such as cyberspace or source code, or involve changing forms), but she ultimately agreed.
\nWe next turned to the question of how to maintain and preserve Heaven\u2014a key issue since certain parts of it would need replacing.
\n\u201cI don\u2019t want you ever installing new types of bulbs in the piece,\u201d said the artist, \u201cso you\u2019ll just have to stockpile the type I currently use, and when they run out, the artwork dies.\u201d He then quoted Dan Flavin, an artist famous for working with fluorescent lights, who said: \u201cMy lamps will no longer be operative, but it must be remembered that they once gave light.\u201d
\nWe asked if our client could upgrade to new technology in the event that the original technology, such as videotape, became obsolete and the piece could no longer be shown.\u00a0 We assured the artist that he could personally inspect the production quality of the upgrade (and charge Lili for his time). This request was not unusual; in 2001 the Guggenheim Museum set up a Variable Media Endowment to pay for recreating works endangered by technological obsolescence.
\nThe artist considered the request (for about a nanosecond) and said no. \u201cAn upgraded original is no longer original.\u201d
\nWe persuaded him at least to permit Heaven to be documented in photographs and source code. This way, if the technology changed, Lili could preserve it as a historical artifact, even if she couldn\u2019t actually display it. But a few days later, he changed his mind. If and when the technology underlying the piece becomes obsolete, he said, he wanted the sole right to compel Lili to transfer the piece to new technology.
\nWe firmly rejected this idea. Our client might decide that the cost of translating the piece to a new media is simply too great, and she might prefer to archive it.
\n\u201cOK,\u201d he conceded, \u201cbut I warn you: if she makes any unauthorized changes, I\u2019ll sue to enforce my artist\u2019s rights!\u201d
\nWe reassured Lili that although a U.S. federal law, the Visual Artists Rights Act (VARA), does prevent the alteration of an artist\u2019s work, it is limited in scope and specifically states that a \u201cwork of visual art does not include any\u2026 motion picture or other audiovisual work\u2026 database, electronic information service, electronic publication, or similar publication.\u201d However, the artist could have a stronger claim in certain foreign countries where artists often receive broader protection. France and Spain have particularly strict laws on artists\u2019 rights.
\nFinally, we asked the artist to provide written and signed instructions regarding how Heaven should be installed in Lili\u2019s home. Artists, particularly those who work in multimedia, commonly provide such a plan and often agree that if they don\u2019t, they will allow the collector to decide on the proper installation.
\nNot surprisingly, the artist refused to supply the plan and insisted that he would personally oversee the installation, including making all aesthetic decisions\u2014at an extra cost, of course. In return, he grudgingly agreed to permit Lili to make \u201creasonable\u201d changes to the installation after his death.
\nIt was a small victory, though our client wasn\u2019t so sure that Heaven could wait.<\/p>\n

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Sure, they’re cutting-edge. But the latest technologies in contemporary art can also be double-edged. Hell. That\u2019s what it was like negotiating with an unusually difficult artist for the purchase of Heaven, a multimedia installation composed of cloud-patterned wallpaper, blue fluorescent bulbs, streaming Internet and video. Our client Lili, a collector who had no interest in … <\/p>\n

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