the artist is present

From March 14 to May 31, 2010 Marina Abramovic sat, motionless, in the atrium of the New York Museum of Modern Art. Each day Ms Abramovic sat in the gallery, a parade of spectators – members of the public, artists, celebrities - sat opposite her, viewing and participating in the work from a seat positioned directly across from the artist.

Marina Abramovic during performance of 'The Artist Is Present' at MOMA

This performance was the latest in a range of pieces created by Ms Abramovic since her career began in the early 1970s. In her work she has run the gamut of physical experience – she has stabbed herself, leapt through fire, drugged herself, used her naked body as a fleshy gallery doorway and walked the Great Wall of China.

In so doing, Ms Abramovic has pushed the boundaries of artistic practice. What remains to be seen is whether she will push the boundaries of legal practice also.

The Berne Convention recognises protection for literary and artistic works including “every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression …”. However, while visual art forms have long been protected by our legal system through copyright law, performance art – work that is, by its very nature, designed to be ephemeral or experienced at the time of performance - has fallen outside the traditional purview of the Australian Copyright Act.

Despite their often vivid materiality, performance art works are not of themselves expressed in a form that copyright law regards as material. Copyright does not protect information or ideas, but the expression of ideas. As such, the requirement of fixation is a fundamental precondition for the grant of copyright. This means that copyright arises when an idea, concept or information is written down, expressed visually, filmed or recorded.

Once a copyrightable performance has been ‘fixed’ in material form, the author is entitled to enforce exclusive economic rights which require her consent for public display and performance of the work and the production of any derivative works based on the copyrighted work. She is also entitled to the exclusive moral rights of paternity (right of attribution and right against false attribution) and integrity (right against derogatory treatment of the performance in a way that prejudices the reputation of the author).

These copyright protections are supplemented by specific performer’s rights. Currently, performers’ rights in Australia currently extend only to sound recordings of performances. However, the WIPO Beijing Treaty adopted on June 24, 2012 (full disclosure: I worked on the negotiation of this Treaty on behalf of the Australian government) recognises performers’ moral and economic rights in their audiovisual performances, and ratification and implementation of the Treaty by Australia will involve the extension of the additional protections to audio-visual performances.

Thus, we can see that Australian law has the basis for the protection of both economic and moral interests in performance art – when ‘fixed’ in material form. In the documentary The Artist Is Present, Ms Abramovic explained the way in which her gallery had been able to monetise her performances through the production of limited edition photographic works documenting her performances. These photographs (and other visual records of her performances) would meet the requirement of fixation – however, copyright would attach to the photographs only, not to the performance itself. Obtaining copyright protection for the performance as a whole would require extensive documentation – and even that would be insufficient to protect Ms Abramovic from other artists’ re-enacting the works.

Ms Abramovic explored these limitations in her recent exhibition ‘Seven Easy Pieces’, in which she performed ‘cover versions’ of influential performance art installations from the 1960’s and 70’s. Importantly, prior to the exhibition Ms Abramovic scrupulously obtained consent from the original artists.

Another performance artist engaging with the relationship between performance and property is Tino Sehgal.  Mr Sehgal has monetised his ‘constructed situations’ by selling the right to re-perform them. The sale consists of Mr Sehgal entering into an oral contract with the buyer outlining the conditions of sale and re-performance, and the artist subsequently instructs interpreters in how to re-perform his works in the purchasing institution. Importantly, however, Mr Sehgal prohibits physical documentation of his work, including catalogs, photographs and printed press releases, which means that his performances are only copyrightable in those jurisidictions that do not require a work to be ‘fixed’. This would mean that currently, Mr Sehgal’s work would not be subject to copyright protection in Australia.

The explorations of Ms Abramovic, Mr Sehgal and others raise real questions in relation to the nature of a copyrightable artistic ‘work’, the importance of the ‘presence’ of the artist and the blurring of lines between an idea and its manifestation in performance art. To date, however, performances such as ‘Seven Easy Pieces’ and Sehgal’s ‘Kiss’ have only highlighted the very real gaps in the application of copyright protection to performance art – and the questions that inevitably arise in attempting to propertise performance.

Indeed, stepping back from the MOMA atrium, Ms Abramovic’s work poses an even broader question: in a world where all identity is performative, can it be said that property rights should subsist in all identities?

refer a friend: children and viral marketing

On August 22 the Center for Digital Democracy, the Center for Science in the Public Interest and 15 other consumer and youth advocacy groups filed a series of complaints with the Federal Trade Commission alleging breaches of the Children's Online Privacy Protection Act (COPPA).

The complaints call on the FTC to investigate a number of companies - including General Mills, McDonalds, Viacom and others - for unfair and deceptive marketing practices which encourage children to engage in viral marketing.  Specifically, these campaigns allegedly  induce children to 'refer-a-friend' to receive promotional material from the companies. In so doing, the children are invited to submit both their own personal information and the personal information of their friends, without parental consent, which the complainants argue is in direct violation of COPPA.

While it is the products involved which have riled up a number of the complainant groups (news coverage has focused in particular on the fact that these companies are 'selling sugar' to kids), the complaints raise the thornier issue of what's at stake in the privacy protections provided by COPPA. Of course, it seems to be fairly black and white that we want to minimise children's exposure to junk food marketing, and that if we can do this at the same time as preventing companies from exploiting technologies' ability to collect data on them it seems like a win win.

But this characterisation overlooks the very real impact COPPA - and, in particular, the parental consent provisions - actually have on children's right to privacy. If we think that children should have a meaningful right to privacy, subjecting it to parental oversight is always going to be complicated. While parents may be best placed to act in the interests of their children, they are also best placed to undermine those rights. As a result, the panopticon of surveillance enabled by the web and legislatively ennobled by legislation like COPPA is taking away the ability of children to explore their world anonymously or, at least, in private. This has both overt (the ten year old boy who gets beaten by his parents for looking at something they disapprove of) and more insidious (an entire generation growing up with a sense of being constantly monitored) consequences.

At the same time, the marketing campaigns concerned involve another angle which is particularly troubling for the relationship between children and their digital identity: the incentive to 'refer-a-friend'. In so doing, these campaigns encourage kids to commodify the identity-markers (indeed, the identities) of other kids and 'sell' them (or give them) to corporations. Underpinning this practice is the inculcation of an idea that identities (your own and other people's) are saleable, that people are commodities. I can't help but wonder how that attitude will manifest when these kids are older.

Of course, a balance needs to be struck. Protecting kids from the ever expanding reach of the consumption machine is a noble goal. But we  need to make sure that in seeking to ameliorate one incursion we don't accidentally do more harm to young people's privacy, safety and sense of themselves.

teleportraiture

Janet Bruesselbach has produced a series of portraits via various online chat platforms (google connect, skype etc). I love the way these images turn the ephemerality of digital talk into something fixed and permanent; capturing these moments that are so fleeting. At the same time, to me her work insists upon the permanence of our digital world, reminding us that 'moments' online have lives that long exceed our own, stored, searchable and retrievable in an historically unprecedented way. As such, these images can be understood not only as images of people, but as portraits of the ghosts in the machine.

google effects: augmenting the reality of your face

Image source: http://criticsunknown.com/slideshow/google/

In March, google released a range of aps intended to 'enhance' the experience of its online chat forum, Hangouts. According to a recent article in Slate, the most popular of these aps is 'google effects', an application which enhances your experience of Hangouts by enhancing your appearance: it allows you to adorn your chatting visage with a range of masks which are digitally mapped to your face, moving when you move and "retaining proper size and orientation as you lean forward and back or sway side to side" so as to give the appearance that you are wearing them in real life.

As you can see from the image above, the masks are cartoony and over the top: they do not so much enhance your appearance (in the sense of making you foxier) as they do hide it. Seth Stevenson argues that it is this very disruption of the reality of your face that makes google effects so popular (and useful): it obscures the visibility of your facial expressions and takes the pressure off the need to look a particular way while interacting online. This, for Stevenson, ironically allows users to interact with less emphasis on visibility, rendering Hangouts more like traditional orality oriented forms of communication like the telephone.

While I agree that google effects may well lessen the pressure of online chatting (and possibly increase its utilisation)(who hasn't been put off skyping sometimes as a consequence of a bad hair day/desire to have the conversation on the toilet/etc), I think there is something else going on that is not just about reducing visibility and rendering Hangouts more like the traditional invisible talkiness of the telephone. Rather, google effects allow us to use masks as a graphical shorthand to communicate complex emotions - turning us into the fleshy manifestation of emoticons.

In this way, google effects foregrounds the prismatic nature of online identity: by adding an additional layer of artifice to the digital visage, it forces us to think twice about who we are, and implicitly evokes the fact that identity itself is artifice; that the layers of selfhood are unendingly constructed, that we are masks all the way down to the bone. In this way, google effects insists on a narrative of digital identity in which the emotion/emoticon is a simulacrum, dissimulating (in the baudrillardian sense) that there is nothing beneath the sign.

And just as a geographical map interprets (and imagines) territorial space, so to does the mask of google effects precede (and configure) online identity, replacing the parody of a real world mask with the pastiche of a prismatic digital self. This evolution of the performance of identity for the digital realm recalls Jameson's insistence that one of the defining features of postmodernism is the replacement of parody by pastiche. What, then, are the implications for digital identity of what I'm sure will be increasingly complex and 'realistic' (hyperrealistic?) augmentations of self? Is it simply empowering us to self satirise (or go to the bathroom while we chat) or will the avatarisation of self online have real implications for the way in which we understand and perform our identities in the webisphere (and beyond?)

And what of the content of the mask? At what point is an obama mask an obama mask, and when does it turn into an obama face? (yes, that is a true blood reference, with a little touch of point break thrown in for good measure). Will we see an explosion of efforts to trademark our face to prevent our online impersonation? At what point do the things that you say while wearing my face defame me?

i tweet therefore i am ... a psychopath?

Next week at DEFCON, the good people of the Online Privacy Foundation will be giving a talk on their research regarding what a person's twitter usage reveals about their personality. Specifically, they are examining the (dark triad) psychological traits of narcissism, psychopathy and machiavellianism with a view to answering the question "Can twitter really help expose psychopath killer's traits?"

In particular, they propose to address:

1. Public understanding of psychopathy;

2. General public focus on whether we can spot psychopaths and therefore predict crime; and

3. Public perception that detecting personality from social media is infallible.

Of course, given that this is a talk by the Online Privacy Foundation, I would expect that they will touch on the troubling privacy implications of their research. The participants in the study were volunteers (cheered on by Stephen Fry, which could be said to be under the duress of awesome); participants in any sort of real world application of the research would not be, and we would find ourselves stuck in a bind between privacy and security. While its always difficult to know which way public policy is going to turn on these questions, something (PATRIOT Act) gives me a clue... 

In any event, I imagine that this is a talk that will touch a few raw nerves this week. In fact, I would be worried that current events might overwhelmingly colour reactions to the topic.

Apparently the paper is going to be published a month-ish after DEFCON, so watch this space.

digital dualism vs augmented reality

In his recent piece in The New Inquiry, Nathan Jurgenson discusses the fetishization of 'real life' (as opposed to web life) in contemporary culture.

He argues that the discursive valorisation of 'the real' can be understood as a reaction to the proliferation of mobile technology. Indeed, he argues that the constancy of our interconnection/-nectedness has left us longing for a more pure or authentic pre-digital self, manifesting in the celebration of tropes of the homemade, the offline, the rustic.

However, Jurgenson takes the view that the romanticization of the meat world is based on a false assumption that there is dualism between our online and offline worlds. Rather, he argues that we are living in an age of augmented reality, where the online and offline are interconnected, mutually constituting and reinforcing, and that there is artificiality at play in suggestions that we have 'collectively lost the offline experience'. Instead, he claims that we are now able to appreciate offline life in a way we were never able to before.

It strikes me as cynical to suggest that we appreciate something more because it has been compromised, and i don't think that Jurgenson pays enough attention to the way that the online physically (and psychologically) disrupts and coopts our experience of the offline (doesn't he care that his friends are on their phones during dinner?), but I do think he makes a good point regarding the dissolution of the divide between offline and online life when he says that "the clear distinction between on and offline, between human and technology, is queered beyond tenability."

And maybe, as Jurgenson alleges, this isn't a bad thing. Perhaps, the more comfortable we get with our augmented reality, the better we will be able to manage the new rules of the game - and the less we will be bothered by our friends tweeting through dinner.

But for me - and you can call me old fashioned - there will always be room for a twitter free zone, for conversation that is not mediated by a character limit and for loose talk, muddled up, spontaneous opinions that aren't edited to most flatter the opiner. Does that mean I reject the augmentation of our reality? Do I think we have to switch off to plug into the 'real world'? No. But I do think it's important that we keep discussing the way that the various modes of 'real life' both online and off intersect, bounce off and shape each other, and the way that senses of self are profoundly informed by the way that that self is performed and communicated. 


What do you think? Is it a zero sum game? Or can it be both and neither?

multiple selves

It has become almost redundant to refer to the web as the technological apparatus for the emergence of multiple selves. Sherry Turkle talks about the way that web allows us to “recast identity in terms of multiple windows and parallel lives” and explore multiple aspects of self in parallel. Laura Robinson notes that “these technologies present self-ing opportunities for an ephemeral self, without commitment to a masterself that becomes an ‘I’ or ‘me’.” 

Clearly, the theoretical paradigm of multiple selves reflects the postmodern critique of the narrative of the essential self with its attendant rejection of the ‘myth of wholeness’. And it is the desire to preserve this revolutionary potential of multiple selves - the choose your own identity riff that Chris Poole lionises - that has led to so much uproar around ideas like google passport.

But how much are we actually walking the walk of all this prismatic identity talk? More and more the read-write-webverse seems to be trending towards an interconnectedness of self that forces us to be one person online. 

In fact, an emerging consequence of the collapsed contexts of the web seems to be that we are perhaps more our selves online than in the real world - I am me in ways I didn't have to be me before, I am the same me to my mum and my boss and my friends, even when once I would have preferred to keep those versions of my self separate and distinct.

Is this leading to a situation - like a certain social network founder would have it - where privacy itself is no longer a relevant ambition? Is the web finally going to catch up to the Australian legal system? Or are we going to find new ways to carve out private spaces in the share-everything landscape of the web? 

Of course, it's still early days in the evolution of the web and it's hard to predict what it will look like five years (or even a year) from now. But I worry that the longer we allow things to continue as they are - where we rely on the privacy settings of corporations with absolutely no interest in protecting our privacy - the more we will disenfranchise ourselves from the conversation and handover control of a big part of our identities to 'the man'.

What do you think? Can we still have private places in open spaces? Or do we need locked wall garden internet communities to keep our secrets for us?