The End of the Image

Copy of an Original of a Copy
by Edward Lee, Jennifer L. Roberts, Sergio Muñoz
Sarmiento & Allyson Vieira with Alexander Provan

The following presentations and conversation were recorded at The End of the Image on April 10, 2015, and then edited and augmented in subsequent months. The event was devoted to the challenges posed to legal conceptions of images, objects, and data, especially as they concern intellectual property, by emerging technologies. Participants discussed 3-D imaging and printing, which may (eventually) augur an age of networked production in which endlessly manipulable, ownerless objects can be outputted whenever and wherever the requisite hardware and software can be found—not to mention the printing of body parts and the reproduction of antiquities.

Alexander ProvanI first came across Ed and Jennifer’s work a couple years ago, when we began to develop an issue of the magazine called Pointing Machines, which seeks to better understand today’s vexed relationship between objects and information, creativity and property, in part by thinking anachronistically—which is to say by situating digital practices within particular historical frameworks and vice versa. Pointing Machines is named after the simple eighteenth-century tool for reproducing sculpture in stone or wood by means of a system of adjustable rods and needles. The issue reflects on the proliferation of analogous tools and procedures in the digital age, in which the difference between goods (among them artworks) and information about those goods is constantly diminishing. I was struck by the ways in which Ed and Jennifer address an epochal shift in our understanding of images and write about the importance of images in our efforts to make sense of and to order the world. Additionally, each attends to some radical possibilities for reproduction and transmission, which may change the nature of the image—and, indeed, have done so in the past.

Jennifer’s recent, brilliant book, Transporting Visions: The Movement of Images in Early America (2014), is largely devoted to thinking about how the function—if not the definition—of an image might shift according to its mobility; the ways in which it might be coded and decoded; the degree to which it might be understood as a copy of an object in the world. She does this through studies of the painters John Singleton Copley, Asher B. Durand, and John James Audubon that focus on their relationships to transportation and telecommunication networks in the United States and Britain between the mid-1700s and mid-1800s.

Ed’s 2012 article “Digital Originality” deals with the difficulties facing courts as they try to understand the relationship between digital models, CAD files, and photographs, as they determine what now counts as originality and intellectual property. In doing so, the article suggests that our conventional definition of the image—or the copyrightable image at least—must be adjusted, if not discarded.

As we’ve been developing Pointing Machines, we’ve spent a lot of time thinking about the history of sculptural reproduction, the way artworks and artifacts change as they are copied and situated in museums and private collections, published in magazines and on websites, made available as 3-D scans in different databases. Allyson Vieira is extremely knowledgeable about the history of sculpture, especially in antiquity, and her artworks occasionally grapple with such histories, with the transformations of objects and materials over time, and with the labor (which is so often illegible) that goes into those acts of creation and transportation and reproduction.

Sergio and I have been speaking about these matters for the past couple of years, and our conversations have helped me understand how emergent forms of cultural production relate to copyright, which is his expertise. At the same time, he’s been grappling with the history of copyright law in order to assess how digital practices might come to be regulated by the law, and how legal shifts might affect the work of artists.

None of us are experts on 3-D printing, but we’re all interested in how those technologies are unsettling our understanding of the relationships between objects, images, and data and who claims rights to them—whether legal, financial, or otherwise. As such, 3-D printing seems to provide a way to think about the passage of digital practices into the material world and its prevailing regulatory mechanisms. It also provides an injunction to consider episodes in the history of technology that are characterized by comparably dramatic and rapid changes, which is what we’ll spend much of tonight doing. We may also address 3-D printing as a metaphor or sign under which we all work and live, whether or not we directly engage with the technology. As Jennifer writes, the telegraph “names not just a technology, but the entire problem of a society struggling with rapidly disintegrating distances and differences.” The same might be said of 3-D printing today.

I think the juxtaposition of our various perspectives and areas of expertise will be stimulating, if not entirely clarifying. We’ll begin with brief presentations and then we’ll have an informal conversation; please feel welcome to participate. Then—as an NPR talk-show host might say—join us online, where the conversation will continue!

Edward LeeThe consumers buying 3-D printers are also becoming creators of 3-D scans, CAD designs, digital models, aesthetic and functional objects, and various other digital and physical works. For copyright law, there are two difficult questions. The first is: Who qualifies as an author with respect to the creation of these works? Traditionally, copyright requires some form of originality. The Supreme Court has defined originality in terms of independent creation, meaning your work isn’t copied from somebody else’s; and in terms of creativity, a modicum of which is required. The second question is: Who is an infringer, what does it mean to violate somebody else’s copyright? Here our notions of fair use come into play; fair use is an exception to copyright—what is permissible, notwithstanding a lack of permission or a license.

To address the first question, I’ll speak about a case called Meshwerks v. Toyota, which was decided in 2008 by the Tenth Circuit. Meshwerks, a design firm, was hired by an advertising agency that was enlisted by Toyota to make digital models of their cars. The digital models were to be manipulable, so that Toyota could continually change them rather than continually photograph cars for ads. The parties had a dispute over the license, which raised the question of whether the models created by Meshwerks were copyrightable in the first place, whether they were original or derivative expressions.

Meshwerks claimed that designers spent one hundred hours creating the models. Ten percent of the work was measuring the cars and inputting the data, which is a mechanical process. But 90 percent of the work involved “data sculpting”: designers refining raw data, manipulating rough sketches. The end result was a sophisticated wireframe image. The court had to consider whether this digital image is copyrightable, whether it possesses originality. Surprisingly, the court said that the image was not created independently, but was simply copied from the Toyota car.

I think this decision is wrong on many levels. First of all, there is a real difference between a car and a wireframe. One cannot be a copy of the other. Secondly, more importantly, the Supreme Court decision laying out the doctrine of originality defines independent creation as not being copied from another copyrighted work. A car is a useful article, not a work of expression. How can we expect courts to handle even more difficult cases involving 3-D printing or CAD designs, where the level of human input is even less? Let’s say that you spend five minutes instead of one hundred hours manipulating a preexisting design, or you reproduce a design from a photograph. Does that constitute independent creation with a modicum of creativity? These are the questions that we’re going to face as large numbers of users or consumers utilize these tools to become creators.

To address the second question—who is an infringer?—I’ll refer to the controversy involving Katy Perry and the design of Left Shark. Perry performed at the Super Bowl halftime show this year with a dancing shark on either side of her, and Left Shark was conspicuously out of rhythm. This blew up on Twitter, and representations of Left Shark turned into a meme. An enterprising artist named Fernando Sosa created a 3-D-printed figurine of Left Shark. As you might guess, Katy Perry’s lawyers got wind of this and sent a cease-and-desist letter. Sosa originally backed down, but then some law professor offered to represent him pro bono. The controversy hinges on the question of whether the costume design is actually copyrightable. As I said with regards to the Meshwerks scan, useful articles are not protected under copyright. Is the Left Shark costume a useful article? Is its design not separable from the useful quality of covering a person’s body?

There are two possible results of this case. If Perry’s Left Shark costume is not copyrightable because it is a useful article, then Sosa might be able to claim copyright on his figurine, which is not a useful article. Perry came up with the costume, she alleges, but does not get a copyright, while somebody who made a 3-D-printed figurine inspired by that costume does get a copyright. How broad is the copyright that he would get? Would others be able to create their own 3-D-printed versions of the Left Shark if they independently create it and use the Perry costume as the model, not the Sosa figurine? We have to figure out where the inspiration emanates from in order to determine whether this counts as independent creation.

Let’s assume that the Left Shark design is copyrightable and ask if Sosa’s figurine is infringing. The answer is probably yes, because it’s such a close copy of the original design. There certainly are potential violations of the various exclusive rights to copying and public distribution of the copyrighted work. What if other people do the same thing, but they don’t distribute the object, they just make one 3-D-printed version for themselves? That’s when fair use comes in. Could the makers argue that this is a noncommercial use? If the answer is yes, then the end result is almost the same as if you say that Sosa’s activity is not infringing. You can end up with thousands of copies of the 3-D-printed Left Shark, but each one is printed on one person’s printer. The proliferation or public distribution of the copy is based on the accessibility of the technology and not on a single person’s ability to mass-produce the objects and get them to market.

Jennifer L. RobertsIn writing Transporting Visions, I found myself stumbling repeatedly—and at first unintentionally—upon questions about the coding of information and its transfer in an era long before what we now recognize as the digital age. The book is not at all about questions of originality or creativity, but again and again I was confronted with problems having to do with artists attempting to peel information away from objects in order to make them more mobile. And I was always aware of how these questions related to my own discipline: Art history is based on moving, coding, and synchronizing images; comparing different historical periods via photographic illustration or the necromantic technologies of the slide and digital projector. My initial goal had been to understand the materiality of images by focusing on situations in which their materiality becomes highly evident, mainly as they are in transit. Everything is heavier when you have to pick it up and move it, right? You become more aware of materiality. I was also interested in thinking about delay and how to write art history in a way that attends to the fact that images had to travel slowly on the ground; people had to wait for images. I ended up thinking a lot about communication and coding, and the relationship between prints and paintings and other communication technologies in the eighteenth and nineteenth centuries.

Tonight I’ll talk about three historical moments that I discuss in this book when artists were working through the relationship between the image and emergent information technologies. The main point to make off the bat is that painting and other kinds of image making are information technologies from the outset. A painter transfers objects from three dimensions to two dimensions, which usually involves the kind of schematization and rescaling that is typical of any number of modeling activities. Space is coded into a coordinate grid, especially in perspectival representations. Paintings present information that is formatted and packaged in a particular way. How did these kinds of formatting come into being, and what was the impact of other communication technologies on the technologies of image making?

The painter John Singleton Copley was, in the middle of the eighteenth century, living in Boston and learning to paint by London’s rules. He tried to develop a kind of a correspondence course in painting by sending his works across the Atlantic to be exhibited and evaluated by fellow painters, whose feedback often took many months to arrive. I compare his practice of painting to the ship, which is the predominant information technology of the British Empire in the mid-eighteenth century. Everything that needed to travel between England and Boston had to go by ship, which led to an information bottleneck. You might think of ships as ZIP files: There’s a great preference for the kind of information that can be schematized or compressed. For example, you don’t generally send plants; you send seeds, the genetic code for plants. You don’t send paintings; you send prints. You don’t send chairs or buildings; you send pattern books that will allow for these things to be recreated.

Consider this page from Thomas Chippendale’s The Gentleman and Cabinet-Maker’s Director, a catalogue of the furniture maker’s designs first published in 1762, which in many ways is analogous to a CAD file for 3-D printing: Chippendale chairs in London are coded and compressed as drawings that can travel more easily to the United States, where artisans restore the missing information by realizing the designs in three dimensions. Copley, in his paintings, borrows from these transatlantic informational rhythms as he attempts to produce vividly transitive paintings. For example, in his famous “tabletop” paintings, which feature sitters facing the viewer across highly polished mahogany tables, he uses the dynamics of reflection to suggest the unfolding or blossoming of forms as they reach the viewer’s eye.

The second case that I examine in the book explores the relationship between John James Audubon’s natural-history images and the development of paper money in the United States. You may know Audubon’s famous Birds of America, a multivolume, double elephant folio–size ornithological work published between 1827 and 1838. In looking at his work, I ask why Audubon insisted on drawing every bird in the United States and its territories—from hummingbirds to whooping cranes—at actual size.

He’s traipsing around the North American wilderness, carrying huge portfolios, making drawings that will be turned into 435 prints, each nearly thirty by forty inches in size, to be shipped around the world. He called Birds of America his “enormously gigantic Work.” But why not shrink the birds and publish rescaled, coded, portable versions of them?

There was a reason for Audubon to insist on actual-size representation in antebellum America. He’s living in a period when the transmission of value and information over distance is highly unstable. Things transmitted through space tend to shrink or expand in problematic ways: Western “tall tales” become exaggerated as they’re passed along from place to place; according to Buffon, the French naturalist, species shrank as they migrated from the Old World to the New (just as specimens shriveled in ships as they moved from the New World to the Old). But for Audubon, as for many other Americans in this period, the most problematic kind of rescaling through transmission involves paper money, which does not hold its value. If you have a five-dollar bill issued by a bank in Kentucky and you want to cash it in Boston, you’re not going to get five dollars for it, because value diminishes with distance.

Audubon felt that in order create an image that would act as a true and authentic representation of its subject, and that would remain believable and immediate regardless of how it traveled, he had to resist the rampant rescaling that so often was a function of mobility. Audubon’s work is useful for us to think about today inasmuch as he recognized the inherent derangement—to use a nineteenth-century word—of size and scale that occurs through reproduction, especially digital reproduction. Anyone who’s looked at a digital file of a book, for example, and tried to figure out how large the physical book actually is, can relate to this conundrum.

Finally, I write in the book about Asher B. Durand, who was best known as a landscape painter, in relation to the advent of the telegraph in the United States. What happens to images when the telegraph is invented in the 1840s? Durand begins his career as a currency engraver and reproductive line engraver, which is to say that he worked with technologies for creating highly coded images, as you can tell by looking at the way the flesh is rendered with dots and arcs in his line engraving Ariadne (1835).

Durand was present at the birth of another dot-and-line coding machine: the telegraph. He was a friend of Samuel F. B. Morse’s, and he took over the National Academy of Design in New York after Morse stepped down in 1845. He’s in a position, therefore, to really wrestle with the relationship between the coded reproductions created by engraving and those created by the telegraph. What he realizes is that the telegraph creates a profound split in the mobility of media. The telegraph strips language from its material substrate and transmits it instantaneously and electronically. Images, even the most highly coded prints, are left behind, abandoned in this transformation. Not until the advent of wire photography in the early twentieth century do images attain a similar kind of mobility. Durand then starts to make richly detailed paintings of mossy forest interiors, with forms crowded close to the picture plane. These are totally different from the typically bombastic, spatially expansive nineteenth-century American landscape painting. I argue that Durand is embracing the qualities of paintings that make them slow, absorptive, almost adhesive forms of information, impossible to transmit electronically and instantaneously. He’s working through the problems of mobility that characterize this period, when the telegraph ruptures the usual ways of thinking about distance and transmission.

These are just three moments of confrontation between painters or image makers and new technologies that code and transmit information. Every thoughtful artist working within the media ecology of the nineteenth century had to come to terms with the fundamental questions raised by new communication technologies about what it meant to make and move images. In particular, in responding to the conversion of images into information, nineteenth-century painters became highly conscious of what could not be understood as or converted into information. Size and color and materiality, for example, began to acquire new meaning as aspects of art objects that resisted certain kinds of transcoding. An analogous issue today would be our growing awareness of the properties of objects that fail to be captured in the processes of 3-D scanning and printing.

Sergio Muñoz SarmientoOne question that Alexander posed to me many months ago—and that has traumatized me ever since—is whether or not we should even consider 3-D printing in terms of property law. We were discussing copyright and appropriation art and the ways in which the underlying creative acts are interpreted in relation to—and, increasingly, controlled by—this particular legal regime. Should we immediately grasp on to legal language and structures when we address copying and new technologies? This question is largely overlooked. When I first considered it, I asked myself how 3-D printing might disrupt the production of culture, and how the law might impede the radical possibilities represented by the technology.

In my experience in applying the law to art, I’ve found that the law fundamentally doesn’t care about art. Or, what the law cares about is whether the production of art is lawful—according to the law, not to the whims of artists or the general public. For example, when it comes to the concepts of originality, authorship, and copying, the law has established definitions, more or less regardless of cultural influences or art history or philosophy. The only context pertinent to the law is that of law. As legal scholar Lionel Bently points out in “Copyright and the Death of the Author in Literature and Law,” the law doesn’t abide by the redefinition of “author” in literature and visual art by poststructuralist theory, for example.

[David Saunders’s] observations concerning the distinctiveness of the literary and legal fields help us to avoid the real problems that would be faced if the poststructuralist critique had to be incorporated into or accommodated by law. In so far as Barthes’ claim is an extension of Saussurean linguistics—that the meaning of texts derives from a system of “signifiers” and “signifieds” rather than from the author—it is difficult to see exactly what this would mean for copyright law. This is because the relationship between copyright law and “meaning” is extremely troublesome. In some ways copyright is not about meaning at all, so that the radical critique would fail to bite.

The law’s lack of regard for culture and scholarship isn’t necessarily bad: It forces cultural producers to develop new ways of thinking that can be incorporated into new ways of producing culture, which hopefully will enable us to get beyond the framework of capitalist production that is facilitated by the law. That said, I’m sure that the use of 3-D printing will spur changes in the law, perhaps at both legislative and judicial levels. And with the rise of consumer printers, we’ll see an increase in lobbying against the manufacturers of the technologies and the products made by end users.

As an example of how the public’s use of new technologies impacts regulation, consider the famous 1984 Supreme Court case of Sony v. Universal Studios, otherwise known as the Betamax case, after the videotape-recording format developed by Sony in the mid-1970s. Claiming that the VCR was designed to infringe on copyrights, Universal Studios and Disney sued Sony in 1976. The Supreme Court eventually decided that the VCR, as a machine, did not violate fair use because it facilitated significant non-infringing uses that were to the public’s benefit. After the case was decided, Disney and Universal Studios lobbied Congress to pass legislation against home copying, but by that point VCRs were already so widespread that to restrain the use of the machines via legislation seemed impossible. And, of course, the film industry quickly began to cash in on video rentals and sales.

Regarding 3-D printing, I think that we’re going to see an expansion of the conception of property and property rights under the law—not just directly but indirectly. Which is to say that 3-D printing will impact how we understand what “things” are, how we interact with those things and each other, and whether those interactions should be governed by law. Keep in mind that, to most legal scholars, property is not a thing so much as a bundle of rights: In the case of copyright, the copyright holder has the right to copy, distribute, make derivative works, display the original, and so on. Property is a structure, a relationship between people (and corporations) and things. As Ed notes, one person printing multiple objects is different, legally, from multiple people printing their own objects; the impact of the technology will depend on the prevailing practices. In other words, rather than subvert the way that the law defines and regulates property, the technology and its uses are likely to make property into even more of an amorphous structure, and enhance property law’s ability to commodify and objectify any kind of process or product. Given the degree to which financial speculation contributes to the valuation of cultural goods, I anticipate heated disputes about who has the right to use, own, produce, and reproduce 3-D property and its tangible and intangible progeny—even as those terms become more and more slippery. We’ll need legal structures to help us resolve such disputes.

Courts tend to consider how new technologies are used, who controls them, and whether and how they are controlled, i.e., what the hell is actually going on in the real world. In the Betamax case, the US Supreme Court clearly found that the VCR was being used for noncommercial and non-infringing purposes. But in the cases of A&M Records v. Napster (2001) and MGM v. Grokster (2005), the Court found that Napster and Grokster were monitoring, even controlling, the activities of the end user, nearly instructing people how to infringe copyrighted works. In relation to 3-D printing, we must not think only about how copyright involves the alleged infringer and copyright or patent holder, but also about the intent of the companies that make the various technologies that are being employed.

Allyson VieiraIn 2008, I made a sculpture called f(f(f(f(n))))—as in function of function of function of function of n—which refers to a set of replicas of statuary that dates to around 420 BC. At the time, a Greek artist named Kresilas made a very famous bronze sculpture of Pericles, the general and statesman who is famous for building the Acropolis, winning wars, and being the so-called father of Greek democracy. This statue no longer exists; nobody has seen it for thousands of years. We know that it existed because Pausanias wrote about it in Description of Greece; Pliny in Natural History; Plutarch in Pericles. We think that this was a full-scale, life-size figure, not a bust. Don’t think of the sculpture as a Roman portrait bust with fantastical, grotesque, specific faces. The sculpture was an idealized portrait type called the strategos, which means “military leader”: a bearded head of a mature man with a Corinthian helmet on top of a nude, athletic body. Strikingly similar portraits existed of Themistocles and other Greek military leaders.

When we think of ancient-Greek artworks, we think of marble statuary, but in reality bronze statuary vastly outnumbered marble statuary in the ancient world. (Again, we know this because of the observations of ancient writers.) Today, as in ancient times, bronze sculptures are created—and reproduced, made into editions—using the indirect lost-wax method. Not only was the statue of Pericles a portrait type among many such types, it was a sculpture that could have been reproduced in many different versions—some identified as Pericles, others identified as Themistocles or Meletus or other strategoi. There was a huge bronze industry in the ancient world, which we know very little about today. Why are there no more bronzes left, and why are bronzes the most treasured of all the ancient works? Metal was recycled, as it is now; the statues were melted down and the bronze was used for other statuary, hairpins, swords, drinking vessels, and so on.

From the “original” Pericles statue, many descending branches of copies were made, most of which have been lost to time and metal recycling. Four versions, made by the Romans in marble, still exist today. I’ll trace the history of one that is in the collection of the British Museum.

It was made in the second century AD and likely copied from an original bronze. The Romans made portraits in the form of busts, which topped herms, or columns. When making copies of bronzes, the Romans might take different parts of the statuary and rearrange them, fragmenting the original. So here the entire body is gone, only the head remains. This copy was found in Hadrian’s Villa in Tivoli. When it came out of the ground, during the archaeological fever of the late eighteenth century, the period when the British Museum got most of its ancient works, sculptures like this were often restored to contemporary tastes on-site. Faces were adjusted, missing parts were added, phalluses were removed from herms. The nose and visor of this sculpture were likely restored on-site. The work became part of Charles Townley’s collection, which was later donated to the British Museum.

Now let’s look at a plaster cast from the collection of Munich’s Museum für Abgüsse Klassischer Bildwerke, which is made entirely of casts of classical sculptures. In the late eighteenth and early nineteenth centuries, plaster casts of classical statuary were produced by the hundreds and thousands and disseminated throughout Western Europe and the United States as pedagogical models for art schools and decorative items for the homes of the wealthy. This is clearly a cast of the British Museum Pericles, but there’s one crucial difference between it and the original: the chip on the helmet, the absence of the right side of the visor. They are the same and yet not the same; here’s another fork in the branch of replicas. But when did that branch occur? It’s conceivable that this cast was created from a branch of molds made at Tivoli shortly after the Townley marble was unearthed, but before the restoration of its visor. I can’t say how many remoldings and recastings took place before this Munich copy was created. If we care to search for “originality,” we could say that this cast, though a cast in an impoverished material, is more “original” than the British Museum marble.

That brings us to this contemporary copy, which I bought from eMuseumStore.com, a California-based manufacturer of “historic art sculptures.” This copy, made of resin and paint, is the same scale as the Townley Pericles, as is the Munich plaster. The eMuseumStore copies show the same missing right visor and thus are made from the same replica line as the Munich plaster, which probably forked off from the Townley-Pericles line before making it into the British Museum. Over thousands of years, you can see the degrading of material and the gradual alteration of the depiction of the subject—the result of a process of recasting and recasting and recasting.

For f(f(f(f(n)))), I made some flexible molds from the eMuseumStore bust and then repeatedly made new plaster casts, each of which stretched and distended the mold further, until it eventually broke. I repaired it, broke it again, etc. The resulting piece is a series of plaster casts that bear the imprint of the mold-making process, the disintegration of the form.

This leads me to think about how the physical evidence of processes and human labor reveals itself in artworks. Here is a photo of the top of the entablature of the Parthenon. In the foreground you can see some striations and subtle textures on the stone: 2,500-year-old chisel marks from the original builders. You can see where the lead is hammered into the joint. A team of art historians and restorers is currently mapping these marks in order to reverse-engineer the tools and techniques that were used. Handmade objects tend to retain marks of their making, marks of individual labor. Of course, these marks, which exist between blocks, thirteen meters high, would never have been seen by an Athenian citizen; but the ways in which marks of labor are emphasized or deemphasized, revealed or hidden, can have political implications.

Let’s move ahead a few millennia to the design of Brasília, the capital of Brazil, by Oscar Niemeyer and Lúcio Costa in the 1950s and early 1960s. Unlike the images we saw earlier, here we have smoothly finished surfaces that strive toward gravity-defying, ethereal geometric forms. All traces of the human labor that brought the buildings into existence have been polished away. Though thousands of humans toiled to build this fantasy city from humble materials, concrete and steel, the quality of their surfaces is like that of mass-produced commodities. The human labor was erased as the buildings were literally whitewashed. That said, I like to think that as these buildings age, more and more elements of their production will be revealed through deterioration, much to Niemeyer’s chagrin.

In 1982, just before the end of Brazil’s military dictatorship, architect Lina Bo Bardi designed the Centro de Lazer Fábrica da Pompéia, known as SESC Pompéia, an enormous community center in São Paulo. The building materials are identical to Niemeyer’s: concrete and steel. But the contrast to Brasília is total: Every part of the labor is shown. The joints are visible. The bricks sit heavily on each other, evidently squishing mortar. The material and construction of the concrete molds are not smoothed over, but create visual texture. The mechanisms of the building’s construction are revealed, not hidden. The architecture and its construction are inseparable. The structure is massive, but the scale remains human because of the evidence of the human hand and labor.

In my work, I strive to retain these marks and the traces of my labor. With minimal guidance, I try to let the interactions of tools and materials determine the forms of the sculptures. Whether the works are carved bricks or cut-drywall stacks; you can see marks of the saws, drills, and blades that are used to make the works. These works, and the other works I’ve discussed, show the remnants of manual, material labor. My question is: What do the remnants of digital labor look like? What traces are preserved in a digital object? How do we make sure that the labor that goes into making these objects is not erased?

ProvanJennifer, I wonder if you could speak about the description in your book of paintings as active delegates rather than passive intermediaries, and how artworks register the ways in which they’re created and transported, the reasons for their being painted by hand and shipped across oceans. You mention in the book that you’re particularly concerned with how objects in the international commodity economy that was emerging at that time can convey social memory.

RobertsThis notion of the painting as an active delegate comes out of recent literature in thing theory and the new materialisms that imagine objects and technologies as having a meaningful impact on human behavior. So you can think about the extent to which human labor and the patterns created by tools, for example, are not only signs of human labor but also signs of a reciprocal or symmetrical agency being exerted by the material that’s being tooled or worked on. The marks of human tools look different depending on the materials that bear them, and any discussion of digital labor has to take this into account. But in describing objects as active delegates in mobile contexts, I’m suggesting that they reflect not only the artist’s labor but also all the other kinds of labor and organization that go into the movement of objects between places. Paintings being sent from Boston to London are part of the enormous network of maritime activity in the eighteenth century. (One of the most famous early accounts of Copley’s paintings in London was written by a ship’s captain named R. G. Bruce, who paraphrased prominent English painter Joshua Reynolds’s assessment of the work.)¹ Paintings are moving out of the control of any one owner or author as they enter into these various systems, and the same thing is happening to all kinds of commodities in the eighteenth century.

Objects were overtly imagined as active agents in this period via a common form of literary production at the time, the “it-narrative” or “circulation narrative.” These were popular tales written from the perspective of objects as they moved around the world: The Adventures of a Rupee; The Adventures of a Pincushion; The Genuine Memoirs and Most Surprizing Adventures of a Very Unfortunate Goose-Quill, etc. The stories are all about coming to terms with a globalizing economy that is too big for any one person to grasp or surveil; the only author who can provide a complete account of the life of an object in this world is the object itself. Only the object can serve as the delegate, and only the object can really tie together all the people around it.

LeeRegarding the way in which the object embodies the labor of its maker, I think it’s interesting to consider that copyright law dates to the eighteenth century in Britain, to the recognition of the difference between the physical book and the expression or intellectual property that is contained in the book. It took time for the publisher to be separated from the author, for the object to be separated from the creation.

ProvanEd, perhaps you could explain the differences between the United States and Europe with respect to the rights of the author being alienable from the object that she produces. In Europe, an author has moral rights to a work, which extend beyond what we understand as copyright. Although the differences between the US and Europe have diminished in recent years as our laws have become more restrictive, right?

LeeWell, there are also moral rights in the US that extend to a limited class of “works of visual art”—a painting, drawing, print, or sculpture in single copy or limited edition—for the lifetime of the author. An author of a work of visual art has the right of attribution and the right of integrity. The US established these rights in order to join the Berne Convention for the Protection of Literary and Artistic Works, which requires some recognition of moral rights, in 1988, but the US did so only minimally and begrudgingly.² The continental European countries embrace moral rights, as you indicate, in a much more capacious way—especially in France, where you cannot transfer your moral rights to anyone else. For instance, you have the right of attribution, which enables you to have your name attached to the work that you created, but also the right of integrity, which enables you to object to alterations of your work. The US doesn’t really have these rights except for the limited class of works of visual art, in part because our philosophy of copyright is based on more utilitarian principles.

SarmientoWhat you both say makes me think of Amazon’s recent patent filing for on-demand 3-D printing: a truck that will be outfitted with a 3-D printer and produce whatever you order as it drives toward you.

VieiraWhy not use a drone?

SarmientoI’m sure Amazon is working on a drone equipped with a 3-D printer—we just have to wait. What interests me about this scenario is the question of where the labor entailed in making the product resides—if we can say that labor is expended despite the fact that the process is entirely automated. Where is the labor of the creator or author archived? In a digital file, in the cloud? To me, this is similar to the issue of moral rights. Traditionally, what’s protected is the soul or spirit of the author, for instance an artist, which is embedded in an artwork. Here moral rights are more like “labor rights,” which are like an abstract inversion of the author’s spirit; what is protected is the labor that is expended. But US copyright law does not protect intellectual property based purely on expenditure of effort, or “sweat of the brow.” The law—thanks to the Visual Artists Rights Act, passed in 1990—protects the spirit of the artist, or limited moral rights having to do with attribution and integrity (and only to authors of narrowly defined works of visual arts). I wonder about the questions that might be raised by 3-D printing in regards to protecting, however covertly, the labor of the author.

RobertsWe’re speaking about a very particular kind of labor. With copyright law, a particular species of labor is being protected: the labor defined as creativity, an immaterial act of the mind, a spark. But there doesn’t seem to be any way to recognize the actual labor of creating a reproduction, which I think speaks to your point, Allyson. It’s not easy to make a bronze reproduction; there are a lot of things that can go wrong.

VieiraIt can be very hard to make a reproduction!³ Earlier, I mentioned to Ed that, during my research into these Pericles sculptures, I learned about the explosion of bronze replicas and phenotypes in ancient Greece. Then, around 200 BC, the Romans became obsessed with Greek art and imported boatloads of it. The Romans also started to make their own copies. (The flood of copies of copies of copies continued during the Enlightenment, the Neoclassical era, the Victorian era.) When a Roman sculptor made a bronze copy of a Greek original, he actually inscribed his name on the base: “Joe made this.”

This relates to the Meshwerks case. The copies were not simply stamped out like water bottles in a factory; they were crafted, adjusted to fit the tastes of the artist and the buyer. What does it mean to inscribe the name of a copyist? First, the copyist is claiming ownership because he performed a difficult task and made adjustments according to his tastes. Second, the inscription differentiates the copy from the original. Joe is claiming to have made the copy, not the original.

LeeAs a classics major, I find this very interesting. If you think about this issue without considering copyright law, which of course did not exist in ancient Greece or Rome, the attribution of the copyist makes a lot of sense. If you advertise your authorship of the copy, you don’t need permission, and anyway you’re not going to be sued. In fact, attaching your name may help to promote your career by distinguishing you as a copyist. To compare this to a contemporary form of copying: Many YouTube clips that have been excised from TV shows or movies, presumably without permission, indicate in the caption that no copyright infringement was intended via the statement “all rights to Viacom,” for example. You can see how copyright law scares people into differentiating themselves as copyists, providing proper attribution, and saying that they don’t intend to infringe. This has become a norm among YouTube users even though to make this statement doesn’t grant you immunity at all.

Audience member 1Anything that is copied digitally is, ideally, a perfect replica of binary information. Theoretically, there should be no difference between two files that contain the exact same information. But in practice, this is not the case, in part because the stability of digital media is increasingly in question. I wonder if we’ll soon have a revelation that compares to our recognition that paper made in the nineteenth century was deteriorating. And might the decay of digital files reveal them to be distinct, even if they are copies, and also disclose some form of labor that went into their production?

VieiraThis relates to my wish for Niemeyer’s buildings in Brasília to fall apart, to split at the seams. Material matters. You can’t make a perfect digital replica of an existing object, although you can make two digital files that are for all intents and purposes identical. The form may be the same, but the object is not the same as its digital representation.

ProvanBut you can have an object that is copied and then turned to data and then reproduced in exactly the same form with the same material. It wouldn’t be the same object, but all the qualities you mention would be identical.

VieiraWell, the object might have the same shape, but what if the original is made from banana peels? You can’t print that (at least not yet), although you can approximate the shape.

ProvanIf the material is metal or plastic, then you can replicate the object.

VieiraTo a certain extent, yes, but most materials that compose the objects in the world cannot be extruded by a 3-D printer.

ProvanThat’s becoming less and less true, right? You may not be able to print an actual banana peel, but the number of materials that can be employed in this process are multiplying dramatically.

Audience member 2Having used 3-D printers for five years, I can say that the material constraints are still severe; consumer printers are limited to types of plastic. The professional and industrial services that utilize more advanced materials are not likely to become available to consumers anytime soon, which makes the Betamax comparison seem inappropriate. I think we should demystify this notion that everything can now be perfectly replicated.

Regarding labor, the actual marks are in the machine: All the consumer printers are based on the work of open-source coders around the world who have built their own machines and, later, established companies like MegaBot. If you look at the code and design of the printers, you can see that collective labor.

Audience member 3Shouldn’t we also be talking about the reproduction of biological materials? You can’t replicate a banana peel, but you can replicate a sheep or a whole banana; you can end up with the same material, the same genetic code. The copy of the sheep isn’t the same object as the original, but it is for all intents and purposes a replica. The implications for intellectual property seem to be significant.

RobertsWith a biological replica, you’re basically setting in motion a series of incredibly complex, precoded processes of building and manufacturing, whereas with a 3-D printer you’re providing instructions for the machine to add up equivalent units in a stack. The 3-D-printed object doesn’t have the kind of structural complexity that an organic object has.

VieiraThat’s why I referred to an organic object, because of its interior structure. But I realize now that I shouldn’t have chosen a banana peel, because all bananas are actually clones!

RobertsI want to follow up on what you said about the importance of thinking about these machines as objects created by human labor, as systems. In what little I’ve read about 3-D printing and copyright law, I’ve constantly encountered statements that suggest that you only need to press a button on the printer and that no human labor is involved. But, in fact, these tools are products of a distributed intelligence and archives for massive amounts of human labor. When I talk to students about this, I always use Bruno Latour’s example of the broken overhead projector, which is now a charmingly anachronistic tool. He says that if you want to know how many parts or actants—including humans—are involved in the construction of an object, especially a technological object (which may otherwise seem like a black box), let it break and then see how many technicians have to come to fix it, observe the steps they take and the gestures they make.⁴ But the knowledge of the innovation that resides in the tool also needs to somehow be expressed.

Audience member 4Regarding the relationship between labor and technology and originality, I wonder about the way that Meshwerks made a CAD image from the Toyota. The Meshwerks technicians were essentially following the instructions of the system, they didn’t design the system or the software; if they had, I don’t think they would simply have been copying. It seems to me that they did a lot of work but didn’t exercise much creativity as part of the process of copying.

LeeI disagree with the characterization of Meshwerks’ work as not being very creative and simply involving a lot of time. There is a significant challenge in creating a manipulable two-dimensional representation of a three-dimensional object. In my article, I cite a couple of studies that describe the creativity required to conceptualize that kind of representation. This may be a different kind of creativity, saying one is good and another is bad. And the standard for originality is really low. Very few creations fail to meet the standard. A phone book with names listed in alphabetical order failed. But the Meshwerks images contain much more originality than most point-and-click photography, which is copyrightable. I don’t think the standard for digital models should be more difficult to satisfy than the standard for conventional photography.

Audience member 4I just think that a certain amount of the creativity is actually embedded in the design of the software, and the individual operators are not really creating anything themselves.

LeeThat was not the court’s opinion. In this case, the computer only generated a very rough scan—not a faithful representation of the car. Consider, as an analogy, Leonardo drawing sketches of the human body. How did he represent the body so faithfully and realistically? Through skill and creativity—just like the Meshwerks designers. They wouldn’t have spent a hundred hours perfecting the work if the computer could have created a realistic model on its own.

ProvanDo any of these problems require us to rethink what an original photograph is, and what the photograph is in relation to the image more generally?

LeeI don’t think we need revisit the originality standard for photographs. That standard has not created huge amounts of confusion or litigation, considering the sheer number of photographs.

SarmientoPerhaps the issue is simply the distinction between 3-D and 2-D. Usually, the conversation around copyright and images is predictable and banal. Proponents of unfettered fair use employ Sherrie Levine as an example and argue that a change of context is more than sufficiently creative to count as transformative. However, to their chagrin, the question has changed—especially after the Second Circuit’s decision in Cariou v. Prince (2013)—to whether, when an artwork and the source from which imagery is appropriated are placed side by side, the artwork seems to a reasonable observer to be transformative. We can’t blame courts for not being willing to say that change of context alone is sufficiently transformative. How would that argument square with the exclusive right to produce derivative works (e.g., to turn a book into a film) that copyright holders claim? Is change of context sufficiently transformative only when it comes to artists? Why not filmmakers? Why not for-profit corporations that appropriate contemporary artworks to promote their products and services? I’m not disputing the artistic and art-historical merit of the change-of-context argument, but I don’t think that the law needs to abide by art theory in this regard.

It’s interesting that we’re talking about how objects that are essentially copies may also be products of creativity, but we tend to be reluctant to assign creativity to photographs that simply result from pointing and shooting, and perhaps framing, lighting, focus, and so on—perhaps because these choices seem simple and mechanical. I think this raises interesting and potentially controversial issues about class, labor, and economics, which most art professionals would prefer not to address.

RobertsIs originality in photography based simply on the creation of a specific spatial relationship between the photographer and the object? Is an image copyrightable simply because it expresses the point of view of the photographer?

LeeThere’s one really good opinion by a district court in New York that specifies three different areas of originality. The first is the creation of the subject: You stage a scene and position a person within it. The second is the rendition: You control the lighting, angle, shading, filtering. The third is timing: You get a great shot at the perfect moment.

RobertsLeft Shark was captured at the perfect moment in the sculpture made from the image, right? Is that equivalent to the timing at work in photography? Does this notion of temporality apply to the creation of three-dimensional objects that are not in fact produced in that “decisive moment,” to use Cartier-Bresson’s term? Couldn’t you say that the Left Shark being sold on the Internet is a kind of photograph—taken at the decisive moment—of the entire Katy Perry performance?

LeeThe photographer who captured Left Shark in this case could get what is called a thin copyright—which means that substantially similar images would not be infringing—but this doesn’t speak to the core issue of whether or not the Left Shark design can be copyrighted. And, of course, having a copyright on the photograph doesn’t grant you rights to the design.

Colby ChamberlainWhat actually made the Left Shark a phenomenon? It was a moment of rupture and spectacle, right? Suddenly, in the middle of the Super Bowl, the seamlessness of the presentation of the spectacle was destroyed. You were made to think about the actual body in the shark outfit. Why did Katy Perry sue Sosa, who made the figurine? Because she wanted to take this moment of rupture and fold it back into the culture industry, because she wanted to monetize it. Now there’s an official Katy Perry Left Shark onesie, right?

These moments of rupture, breakage, glitch, or excess present a dilemma for copyright as everything becomes digitized. On the one hand, all kinds of things become easier to copy and distribute. On the other hand, those things become easier to control whenever capital realizes that they should be controlled. Napster is a great example of this: The company was prosecuted to death and individual users were chased down. At the same time, Apple launched the iTunes Store and a brand of MP3 that can be digitally controlled and regulated in terms of how it is played and copied. Copyright, as a mechanism of enforcement, is rather sloppy. You have to know about copyright and infringement; you have to send cease-and-desist letters, which often receive no response. Embedding control directly into the code that constitutes an image or object is much more straightforward.

I’m wondering about the glitches and moments of excess that result. For instance, we locate Warhol’s originality in the failures of the silk-screen system, the glitches that cause problems and errors. How does the law deal with errors like this and the kinds of intentionality that may or may not underlie them? And, Jennifer, you discuss the almost hallucinatory detail of Durand’s later paintings, and I wonder if this is a kind of resistance to the speed of transmission, an excessive image that can’t be captured or controlled by the prevailing regimes of representation?

SarmientoThis reminds me of Vik Muniz’s Double Mona Lisa (Peanut Butter + Jelly), After Warhol Series (1999). What is Muniz actually copying? The original painting or Warhol’s Double Mona Lisa? The question also goes back to the digital certificate of authenticity, which is one way of imposing more control on the fabrication, reproduction, distribution, dissemination, and exhibition of artworks. This is an example of the copyright system creating new rights and regulations in response to new technologies and cultural practices, rather than being upended or subverted.

LeeCopyright law assumes boundaries and certainty: We know what an artwork is, for instance. But Allyson and Jennifer have pointed to the fluidity of artworks over time and distance, the ways in which artworks may not actually be fixed in form or authorship, as copyright understands them to be. Your description of a rupture could also apply to this fluidity, and the impossibility of the meaning of the work remaining static. Likewise, the public is imbuing Left Shark with meaning, and then Perry is trying to say, “Oh, I could monetize this now—this is mine, I claim authorship over it.” Sosa is saying, “No, I created this figurine and I’m entitled to the copyright.” There are all sorts of boundary-defying elements to creativity that copyright law doesn’t recognize. That’s one significant problem posed by 3-D printing: We want to find the one point in time where creativity results in the production of a work, but in fact authorship is often a process, an evolution.

RobertsThis speaks to the whole history of information-based labor, which is meant to disappear. In the nineteenth century, for instance, the people who made paper on which information was inscribed were charged with making the paper disappear, which is a great deal of work. The paper cannot be part of what is communicated; it can’t capture the attention of the reader or the librarian. If you want to see this kind of labor—which is done by people who don’t leave archives and don’t have the power to write themselves into history—you have to attend to the glitch. You have to find the errors. Earlier today I was at a conference at Columbia about book history, where someone presented a paper on bookbinding mistakes. If you want to learn about bookbinding—how it’s done, who is doing it, and in what kind of conditions—you have to study the mistakes. The mistakes mark the eruption of invisible labor into visibility. I certainly think that the painters I write about could be understood as harnessing the errors and glitches of the communication technologies that are, as they are painting, provoking such concern. Maybe artists today are similarly devoted to harnessing glitches.

VieiraI think so. But I do want to draw a distinction between the glitch represented by Left Shark and Warhol’s screen prints. Warhol’s glitches constitute his originality. The kind of glitches that can be found in erroneously bound books are what I’m searching for in the realm of 3-D printing. Can they be found in the code? Can they be found in the objects? I’m reminded of Josh Kline, an artist who works with 3-D printing and has effectively used it to draw attention to the paradoxical nature of the visibility of the labor of contemporary “creatives.” But what you said about papermakers and bookbinders might also be said about the iPhone, except with the latter there are no visible errors (until the machine breaks). We have considered what technology can produce, but we hardly consider the production of the technology, except when Chinese factory workers are in the headlines or the iPhone falls apart in our hands.

ProvanJennifer, Colby mentioned Durand’s engravings, and how you write about these immaculate technical forms. You speak to his anxiety about how what is essentially a vast, complex code of inscriptions disappears for the viewer because of its very perfection. There are aspects of Durand’s work that have a labyrinthine quality, and that effectively still the viewer. They say: Look at the engraving, recognize yourself beholding the work. This seems to me to be a way of using technologies of representation to make evident the materiality of the image and the labor that goes into its creation—and even to combat the effect of the image seeming so perfect because of the technologies and skills being employed.

RobertsWell, you could see reproductive line engravings of the nineteenth century as ornamental surfaces; lose yourself in the incredible patterns; appreciate the labor required to make such beautiful images. But, ultimately, their role was to direct your eye to the original painting that is being reproduced. Painters, engravers, and viewers were working out these questions about where originality resides and what kind of labor is entailed in technical reproduction. Durand ultimately decided that printmaking was too fraught, too coded, too close to the kind of information technology that conceals itself. He turned to painting, which allowed him to say: My work is here, on this surface; you can’t look through it. He made landscapes that are not deep, perspectival images, but that force the viewer to remain on the surface of the canvas, which of course became a standard mode of painting under modernism.

SarmientoWe’re speaking about labor in relation to copyright and the law, but I wonder if we’re all so concerned about what the law may or may not allow us to do, how it may or may not understand our work. Perhaps that speaks to the fact that artists are, at the end of the day, not so different from other capitalists. They’re more likely to ask how to commodify their labor than how not to commodify it, how to introduce ruptures into the system of commodification.

LeeI’d like to echo that by going back to the point Sergio made about the law having a hard time keeping up with technological advances. Sergio referred to the Betamax case, which took eight years to litigate. By then, millions of households had VCRs, so the court couldn’t really say that the technology was in violation of copyright. The same sort of process could happen with respect to 3-D printing and other digital practices. Pinterest, for example—or its users—could be engaging in a lot of copyright infringement, but Pinterest faces no major lawsuit because the norms of its users have quickly become acceptable and businesses recognize that they benefit from having their images pinned. I would not say that creative practices are necessarily constrained by copyright law. The law can’t keep up with those or with the technological advances that so often facilitate them.

ProvanNor would we want it to keep up.

LeeExactly.