I think that a lot of the misunderstandings about “new media” stem from the misguided assumption that looking at images displayed on a computer is anything like looking at other kinds of images. Obviously, the images you see on your screen are fundamentally different from the “traditional” spectrum of images, like paintings, prints, and photographs in that they are arrangements of 1′s and 0′s transmitted and displayed as electromagnetic radiation. But they also differ substantially from the images produced from other technologies that rely on similar physical properties, like cinema or television. The main difference being when you look at anything on a computer screen (not just an image, but text; and even when you listen to audio) you are necessarily making a copy of that thing as you look at it. Non-networked activity, like word processing, would be impossibly slow with out the ability to make (at least) temporary copies of everything, and networked activity (the Internet) as we know it would cease to function. Imagine if the Internet worked like a lending library: each site or server had a limited number of copies that it could give out at any given time, and people, for example, you had to wait for someone to sign out of Gmail before you could sign in. The way it is now, it’s more like a City Hall: you ask a server for something and it makes you a copy and sends it to you.
What this means for our discussion is that every online collection of images faces essentially the same conundrum as the museum filled with camera-wielding photographers: should we let them make copies? In practice, the question is mostly rhetorical. People are going to make copies whether the institutions that maintain the images want to or not. The question is really what dispositions do those institutions take towards the seer-copier and what does that mean for the future of aesthetic reproduction?
Faced with an extreme version of this crisis in 2009, the National Portrait Gallery of London came up with a novel “solution” that not only didn’t work, but that also ended up unintentionally making a radical argument against existing copy protections.
In 2009, the British National Portrait Gallery rolled out an ambitious project to digitize their entire collection. By the spring of 2009, the gallery had already posted more than 60,000 high-resolution images to their website using a program called Zoomify that allowed users to view the works but not easily download their own copies. That March, Derrick Coetzee, a UC Berekely computer science grad student and administrator on Wikipedia, devised a method to download images from the gallery’s website. Coetzee promptly downloaded 3000 of the gallery’s images and posted them to Wikipedia’s free media archive, Wikimedia Commons. On July 10th, the gallery notified Coetzee that they intended to begin legal proceedings against him through the UK courts for copyright violation. The gallery claimed that although the works in question were in the public domain, the high-resolution photographs of those works were the copyrighted property of the gallery and Coetzee had no right to download or reproduce them without obtaining the proper license. The Gallery offered to drop their claims if Coetzee removed all the images from Wikipedia and “refrained” from downloading any more images. The following week, Erik Moeller, the deputy director of Wikimedia Commons publicly refused to remove any of the images, arguing on both legal and philosophical grounds that such images belonged in the public domain.
Both parties agreed that the paintings in question were in the public domain—they were clearly all so old that their normal copyright had lapsed. And they also implicitly agreed that the core of the legal debate was whether or not a painstaking reproduction of an non-copyrighted image constituted a new copyrightable work. In their initial response to the gallery, Wikimedia summarized the 1998 U.S Appeals court case Bridgeman v. Corel which ruled that a so-called “slavish” reproduction of a work cannot constitute a new work because it is not sufficiently creative or different enough from the original; it fails what is known as the “sweat of the brow” standard. If such “slavish” reproductions constituted new works, the argument goes, how could reproductions by different people be differentiated from each other? How could the copyrights of such “new works” ever be protected if there was no physical way to tell the difference between them? Furthermore what was to stop someone from rephotographing such a “new work” and thus claiming a new copyright for that copy of a copy? For its part the National Portrait Gallery posited that the images represent, “a painstaking exercise on the part of the photographer that created the image in which significant time, skill, effort and artistry have been employed and that there can therefore be no doubt that under UK law all of those images are copyright works…”
And so a bizarre new chapter in the history of photographic reproduction began to unravel.
Historically, photographs had only gained admission into museum collections after the Museum had been able to establish its viability amongst the other High Arts as rare and precious objects. In “The Photographic Activity of Postmodernism,” (full article, pdf) Douglas Crimp diagrams this first phase in the Museum’s campaign to “recuperate the auratic” with regards to photography, where “auratic” means authentic and/or original, i.e. like painting or sculpture. That is, according to Crimp, museums were directly responsible for the “triumph of photography-as-art,” through their post- World War II promotion of American photographers like Edward Weston, Edward Steichen, and Walker Evans. The photographs of these “artists” were made on elaborate enough equipment and their appearance was striking enough that museums could finally see past their practical existence as mere reproductions (of reality, or their photo-negatives) and they could begin to regard them as rarefied Works of Art along with the historic authentic and original Arts. Throughout the second half of the twentieth century, the museum more or less protected the auratic art-photograph from the onslaught of its postmodern practitioners like Sherrie Levine and Richard Prince, whose appropriation techniques attempted to mock the originality of any photograph, by quickly including their subversive works into traditional Blue Chip exhibitions.
But when Coetzee’s actions raised the prospect of widespread digital reproduction of the Portrait Gallery’s archival photographs, the Museum had no choice but to incidentally develop a new strategy for protecting the aura of photographs. And here’s where it starts to get absurd.
In order to conserve aura, the National Portrait Gallery borrowed exactly that strategy of appropriation artists (like Levine and Prince) that had originally sought to destroy the myth of the original. In doing so, they arrived at a totally inverted definition of the “auratic” photography. Namely, the Gallery claimed that their photographic reproductions were in fact new, creative works with a unique existence (i.e. “auratic”) not despite but because of their visual identity to the source material. Specifically, the gallery contended that the images constituted new works because in making them, their photographers had expended “time” and “effort” in the service of “artistry”. Since the final goal of such “artistry” is a perfectly transparent reproduction, the more these artistic efforts remain invisible, the more these images become “artistic”.
The Gallery inadvertently ended up recapitulating the formal logic of the ready-made and appropriation art, wherein the work of the artist is signaled not through new visible aesthetic qualities but through invisible, “behind the scenes”, work and conceptual choices, including, above all, the choice to obscure any obvious authorial intervention. Historically, this shift had allowed artists to intercede upon the straightforward production of aura–to problematize any clear (i.e. authentic) path from original “author” to work. Here, however, the Gallery mirrors this avant-garde strategy in an attempt to make a legal argument for strong authorial presence: reproductive verisimilitude paradoxically becomes an argument for auratic authenticity. Put another way, the basic formal strategy of the Gallery is similar to Sherrie Levine’s in her After Walker Evans images, where the artist simply made a copy of famous Evans’ photographs—both simply attempt to reproduce their source images as closely as possible—but the intended outcomes are at odds: Levine uses the strategy of bald appropriation to question the nature of authenticity, whereas the Gallery uses it to claim authentic ownership.
In support of Coetzee, Peter Hirtle, president of the Society of American Archivists, wrote: “The conclusion we must draw is inescapable. Efforts to try to monopolize our holdings and generate revenue by exploiting our physical ownership of public domain works should not succeed.” Here, Hirtle recognizes that the Gallery has conflated physical ownership over an image with ownership over its virtual, intellectual (copy)rights.
So while the Gallery originally claimed Coetzee/Wikimedia has violated copyright law, it’s really the Gallery itself that did the most violence to the basic distinction that copyright set out to make between these two types of ownership.
Barring contemporary questions of fair use, copyright historically allowed an artist to sell a version of a work without having to sell his unique, that is, authentic privilege to the production and reproduction of that work. Therefore, copyright was one of the most powerful means by which aura came to be guaranteed in a world of mechanical (and later, digital) reproduction where copies were extremely easy to make in practice: copyright assured that works could be endlessly reproduced and distributed but only with the permission of the original author, i.e. the maintenance of an “authentic” lineage to the work’s original production.
Legally and logically, then, in the age of reproduction, there is no necessary relationship between the person who owns a work and the abstract intellectual property rights of that work, unless a specific license is arranged otherwise. In the case of the Wikimedia dispute, the copyright of the works in question has been dissipated into the public domain: the Gallery owns the physical work of art but the intellectual rights of reproduction, distribution, etc. belong to the public. Nevertheless, the Gallery tried to leverage its physical monopoly on the works to arbitrate access to their virtual rights, effectively destroying the distinction between the two types of rights; not only does the Gallery prohibit digital reproduction, their website unequivocally states, “we also exert strict controls on all photography in the Gallery, which is allowed only on the understanding that copyright rests with us and that any further reproduction deriving from resulting photographic materials is subject to our written permission.” By prohibiting visitors from making their own reproductions of the source material or sharing the gallery’s reproductions, the Gallery’s policy effectively precludes any of their holdings from ever entering a digital public domain.
The conclusion we have to draw, according the Gallery’s actions, is that the rights to an image are subject less to the rule of copyright law and more to the rule of force: rights “belong” to whoever happens to be able to secure the conditions required to make a reproduction. Here, sheer physical access to an original is made the sufficient condition for the creating a legally unique (i.e. “auratic”) likeness—uncoupled from the intended logic of copyright law, aura becomes a function of what is literally un-authorized reproduction, the very activity that had historically and logically threatened its existence. Thus in a strange twist, the Gallery actually produces the aesthetic conditions it seems to fear the most, mangling the last feasible ways of preserving aura and its legal protections in the age of digital reproduction.
Ironic Epilogue: Facing a protracted legal battle and negative press, the National Portrait Gallery eventually backed away from their complaint against Coetzee and Wikimedia. The Gallery no longer has any high-res images on their website; fortunately, high-resolution images of the museum’s entire collection are available, however, on Wikimedia.