Intellectual Property in Cyberspace

Realtime chat with Mark Napier

March 16, 1998
Terry Fisher: It's 7:00 in Boston, and Mark Napier has kindly agreed to join us for a one-hour live interview. Mark, welcome.
  First of all, let me thank you for being here. This course, as you probably know, is an experimental venture in web-based education. About 1000 people are now registered. You are providing us our first live interview.
  The software we are using (as many students will say)...
  is still a bit experimental. But we're hoping that it works decently for the next hour...
  here's how I hope to proceed...
  You and I can talk for about 20 minutes, then we'll begin accepting questions from the audience...
  Is that OK with you?
  OK, here's the first question (from Jen Carpenter)...
  1. How long have you been producing digital art for the Internet? Did you work in other genres before establishing yourself as a digital artist?
  Interesting. Just for our information, are you in NYC now?
  One of the things useful (for our purposes) about your diverse background...
  is that you may be able to see the issue of artistic integrity from a variety of angles...
  So, for example, I'm curious how you feel about other situations in which the creator of a piece of art (assuming, for the moment, that Barbie counts as a form of sculpture) feels that his artistic integrity has been threatened by some kind of distortion. How do you feel about colorized movies?
  1. Another example: Some years ago, the producers of Monty Python objected when ABC broadcast an edited version of one of their shows, claiming that the editing distorted the humor. Are you inclined to be sympathetic?
mnapier: The question is where can we find a balance between the creator of the image, ....
  and the appropriator...
  Both have a valid stake in the life cycle of an image/idea/conversation...
  I'm aware of the artists at Mattel, and realize that their issues are real, as are mine.
Terry Fisher: But I take it that you think Mattel overstepped its bounds when they went after your...
  original distorted Barbie site...
  I'm curious: You consulted, I gather, with some lawyers when you were first presented with Mattel's letter to your ISP...
  What did they say to you?..
  Did you agree with their advice?
mnapier: I spoke to several lawyers, one was a paid consultation. They felt that I had a case...
  Most felt that the site was clearly parody, and so had to refer to Barbie, as that was the subject of the parody....
  There was no attempt to sell dolls, distorted or otherwise, and no selling of images....
  and the site was clearly not misleading anyone into thinking that this was a Mattel product...
  so trademark 'tarnishing' seemed like a weak case for Mattel as well.....
  Interesting though that they all recommended not pursuing it unless I had to (i.e.. career issues) .....
  due to expenses, both in $$$ and time, not to mention stress...
  A hidden factor to the legal process.
Terry Fisher: Interesting. I'm especially curious about the "career issues"...
  I would think that fighting this claim would only enhance your reputation as an artist...
  Or were the lawyers suggesting that other forms of retaliation were available to Mattel?...
  The circumstances you point to are all relevant -- and clearly strengthen your case on both copyright and trademark grounds..
  Unfortunately, it's true that the idea of trademark "dilution" including "tarnishing" has grown so dramatically in recent years...
  that Mattel may have had a case...
  The issue of time and expense is very troubling, because it strongly tilts the scales in favor of organization like Mattel...
  FYI, for the future, there are many IP layers who would be willing to take on a case like your on a "pro bono" basis.
mnapier: Publicity is nice, but I'm not sure I want to be the 'Barbie artist'. And it takes time to follow the legal issues, which is time not spent on art...
  I preferred not to go on a frontal assault against Mattel, and instead incorporated the legal issues into the dialog of the website.....
  I think the idea that pop-culture icons are 'policed' to retain their 'purity' is much clearer now that I've altered the site...
  This approach is more interesting to me than fighting head on.
Terry Fisher: Did you expect others to construct memes of your site, thereby sustaining your challenge (and your art) but relieving you of the burden of fighting the legal battle?
mnapier: The memes were a surprise. That happened by itself. I'm happy that people took it upon themselves to play a role in the process....
  which raised more questions about ownership on the net.....
admin: We will now start accepting questions from the audience and will feed them into the dialogue.
mnapier: The memes point to the broad possibility of publishing in this medium.
  ...
  anyone can publish...
  not just large corporations or magazines, etc.....
  so before Mattel was a producer of pop-culture - the Barbie image and story....
  but now anybody with a net account can publish at the same level of quality....
  and with the same distribution channels...
  That is a threat to the current producers of these images, who used to have much more power in publishing their images.
Terry Fisher: Very interesting. I've got lots more questions, but people in the audience are waiting to talk, so why don't we take some questions "from the floor"?
mnapier: okay.
admin: Please submit by typing into the text entry window at the bottom of the chat frame.
areinhold asks: I'm curious if the legal advice he got came before or after the ruling in Mattel vs MCA. -- areinhold
mnapier: MCA is the 'Aqua Girl' case? .... the advice I got was before that....
  actually at about the same time that case started up.
  Sorry, I meant 'Aqua' in the above.
Terry Fisher: Mark, Here's a question from Sonja Sonnenburg : "Your Barbie work seems to draw from the tradition of Readymade Art or from Warholian views on popular culture. To what extent does your artwork and/or philosophies differ from other artists?"
mnapier: Warhol is an influence...
  Though I think more about pop-culture directly, that Warhol. I'm influenced by what I see in Toy's-R-Us...
  I see pop-culture as a powerful part of our learning, like a collective subconscious. I don't see fine art as separate from pop culture....
  but related to it....
  I think most artists prefer to see fine art as separate....
  perhaps more important, but I don't make that distinction.
Terry Fisher: That sounds right to me. The artists I know seem to think of the web as...
  a publishing medium, not a creative medium...
  So, a photographer sees the web as a way of distributing his photos...
  and then criticizes it because the resolution is not as good as on a cebachrome print..
  I gather that you see it differently.
mnapier: That's changing....
  Artists are working in the medium for it's own qualities....
  Though they are a small band of ruffians at this point....
  Part of the Distorted Barbie was the re-use of images, something that the net is driving these days....
  and I think these issues of ownership and derivative work will keep surfacing as artists explore this new territory.
Terry Fisher: Speaking of re-use of images, here's a question from Jen Carpenter that asks an analogous question about your work: Here's a question from Jen Carpenter: "Many people have mirrored your original "Distorted Barbie" site so that, while you have been prevented from displaying your work, others are able to do so without a problem. Do you mind if your fans continue to make and distribute/publish copies of your work? Most "real space" artists rely heavily on their "moral right" to control the way in which their work is displayed. Do you feel that the "open protocol" nature of Web culture calls for a different standard in the Internet art world?"
mnapier: As long as my name is on my work, I don't care if people copy it.....
  distribution is part of the life of the work....
  Part of this approach is that I'm not selling the images, so no income is lost.....
  I'm not sure the older ideas of ownership and selling/buying work will fly in this medium....
  Something else has to be invented... Definitely a "different standard" ....
  I see myself as creating an idea, a conversation, dialogue, a public process.... I don't want to set artificial limits on it....
  rather, let is grow and see where it goes. I'm prepared to accept the consequences - someone may re-use my work ....
  in way's I disagree with. That's part of the dialog.
admin: I'd like to remind the audience that we are now accepting questions.
areinhold asks: Should there be something like the GNU public license for on-line art anyone can copy or derive as long as the grant the same privileges to others.
mnapier: I think there is an unwritten rule to that effect now....
  Most people are considerate, some are ignorant and don't even realize they are copying others work....
  I think that making it official helps, but doesn't mean that people will adhere to it.
ScottGarren asks: How does the artist make a living on the web? How does the web fit into your business plan?
mnapier: Plan??? I'm making this up as I go. So are most of the people making money on the web. ....
  It's all very new. I support myself by designing software for the finance industry. .....
  So I'm fairly schizo....
  But it works. I make money, and still have time/energy to create artwork, and there is overlap in the knowledge ....
  between art and job.
Terry Fisher: Let's go back to something you mentioned a while ago. You indicated that the only thing you found objectionable was the re-use of your images by someone who removes your name. Why is attribution of that sort essential to you? Imagine a furniture-maker or architect or chef all artists on some level. Their creations are typically used, used up, altered, and redistributed without any credit being given to the creator. ...
  Why should net artists be different? ...
  Or perhaps the question should be: why should visual artists be different?
mnapier: Hmm..... Ever hear of Emeril Lagasse? Julia Child?.......
  I think chef's want credit as much as anyone.....
  They live by reputation (my wife's a chef, and I can attest to the power of her ego).....
  It all depends on what world you live in. Architects are known by people who study architecture.....
  I want to be respected for excellence. That means that at least certain audiences will appreciate what I'm creating.....
  and that means that I need to put my name on what I make.....
  Also, these other professions can make some money from products, while all I'm getting from this is recognition.
Robin asks: Mark, how important are the software tools you use for tweaking images in order to get your ideas across? For example, bullets without a gun are limited. Would your parody of Barbie have materialized another way?
mnapier: I painted Barbie years before I scanned the doll.....
  And the paintings raised some eyebrows....
  but I saw the computer as a better medium for reworking images....
  So the parody did materialize an other way, but reached a very small audience.....
  The fun of the web is that I can parody/explore pop-culture in a pop-culture medium. So in some ways.....
  my work is very tied to digital imaging and networks.
cpriest asks: should a Internet artist be like a musician in subway/w/hat?
mnapier: I don't know about 'should'....
  Right now I'd say I'm like a musician in the subway without the hat.....
  I'm figuring out how to get a hat in here .....
  Most net artists are in it for the fun, the chance to shape a new medium. It's like colonizing new territory....
  you can't put a price tag on it.
Robin asks: Mark, on the issue of name association and reputation: as a software developer, you've probably used code taken from others on the net, commented it into your own code and used it to do things it wasn't originally intended to do.
Robin asks: Can you correlate that to your manipulations in the art realm?
mnapier: It's like stealing an art technique, or a trick, or a medium....
  Painters do that sort of thing all the time. It's part of the learning process.....
  Good artists don't rely on tricks to create their art.....
  The latest technical wizardry fades quickly, but a good idea can last for centuries. .....
  Even in software development, staying on top of trends and creating user-friendly software is more important than the actual code itself.
Terry Fisher: Well, it's 8 pm on the east coast. Mark, you've been very generous with your time; we should let you go. I've found this a very stimulating discussion. Thanks very much.
mnapier: I've enjoyed it. Hope my answers made some sense. Thanks again for inviting me.
admin: Thanks to all participants -- please let your teaching fellows know your experiences. We'll see you again soon.
Terry Fisher: Thanks to all the course participants for showing up...
  We will try to arrange similar events during subsequent weeks....
  If you have further questions for Mark -- or merely want to thank him -- please email them to the "feedback" icon, and we will forward them appropriately. ...
  Good night everyone.