24 August 2021

From Duchamp to the Cryptosphere

By Amalyah Keshet, Senior Consultant

Photo by Zach Key on Unsplash

“Marcel Duchamp was a paradox. He was the artist who was an anti-artist, the artist who destroyed art….When he exhibited everyday objects in art galleries – objects such as a bicycle wheel, a bottle-rack, a comb or a urinal – he made them into art by virtue of their context, not their form. …When asked what made them different, apart from their context, he replied, ‘They were signed by me and limited in number.’”

I ran across this quote recently while reading Desmond Morris’s The Lives of the Surrealists and it struck me as suiting the current NFT art market phenomenon.  Works that are NFT’d and limited in number, only one token, infinite copies viewable by anyone? Duchamp would have loved it.

It’s also always fun to use Duchamp as an example of the intricacies of copyright protection, derivative works, and editions of art works.  His Fountain, 1917, the famous urinal signed “R.Mutt,” was named the most influential art work of modern times in a 2004 survey of art experts.  Arguably the only thing the artist would have held copyright in might have been the signature that he added – and possibly not even that, if it were judged not sufficiently original.  The mass-produced industrial porcelain urinal was definitely not original, and thus not protected. “Signed by me and limited in number” – toss that into a debate about the role of copyright protection in enabling creativity and “the progress of Science and the Useful Arts” (in the language of US legislation). Add the fact that there is evidence Duchamp didn’t make the work at all, rather the Baroness Elsa von Freytag-Loringhoven, a German poet, artist, and artist’s model.[i]  Nevertheless, it is considered Duchamp’s creation and is considered protected by copyright (and moral rights) until the end of 2038. [ii] (Duchamp died in 1968.)

“In the context of art, it’s tempting to say, well, NFTs are just the logical conclusion of Conceptual art.”[iii] 

Many of us have grappled with Dada Readymades and with Conceptual Art, so we can anchor our musings about things like NFT’d art there.  As it happens, Professor Guy Rub, Ohio State University Moritz College of Law, recently published a persuasive article arguing that Conceptual Art is not protectable by copyright.  It is appropriately titled Owning Nothingness: Between the Legal and the Social Norms of the Art World.[iv]

Owning nothing is one of the current observations about NFT tokenisation. 

In the US at least, one of the requirements for copyright protection is a work’s fixation in a tangible medium. Ideas are not protected unless fixed in a tangible medium, and it is the tangible result that is protected, not the abstract idea. Thus, a work of art that is purely conceptual cannot logically be protected by copyright, Professor Rub suggests.  But he goes on to say “Despite this lack of legal protection, the social norms of the art world lead large, sophisticated, experienced, and legally represented institutes to pay millions of dollars for this type of work…” His article “suggests that those norms create property-like rights in all artworks, whether or not they are legally protected, as well as an ongoing right of artists to partly control the use of their works.”

Digital media is generally accepted as fixed in a tangible medium, and that brings us to NFT-tokenised digital art, not to mention “the social norms of the art world” and the crypto-finance world – where the real heart of the NFT market lies.  An interesting interview with artist Seth Price on MoMA’s website connects NFTs with hedge-fund thinking, making what should be an obvious, but probably isn’t, connection between scarcity and value: the more dispersed digital works are, the lower their value should be, and vice versa.  An NFT token, however, is assumed to be unique, no matter how many copies of the art work it points to are freely available.  The goal of collecting NFT’d digital art: “everybody becomes an investor.”[v]

There was a similarly confounding feeling when the Internet as we know it (the World Wide Web accessible via the graphical user interface) was born thirty years ago.  It all seems obvious and normal now, so best not to brush off the NFT phenomenon as stupendously lucrative hype. The obvious difference is that the World Wide Web was developed with a vision of providing free access to information for everyone, not cryptocurrency fortunes for individual speculators.

At the time of this writing, Sotheby’s has just sold an NFT of Sir Tim Berners-Lee’s original source code for the World Wide Web (in poster form); the complex implications of this particular move are discussed here. Of course, the original source code has always been open and available to anyone. Digital artist Ben Grosser suggests that “To take a symbol for the ideals of the web and turn it into a financial investment instrument within cryptocurrency markets ignores the dramatic difference between what we hope[d] the web could be and what big tech has turned it into.”  Grosser’s own project Tokenize This (2021) will be exhibited at Arebyte Gallery in London this August. “The work generates an endless stream of unique objects that disappear forever once the browser is closed, making them impossible to share or mint as NFTs. As the artificial scarcity that NFTs place on digital objects is pushed to its logical extreme, it ultimately becomes useless, emphasising the importance of free access… When people are spending millions of dollars on these certificates of ownership, eventually they’re going to want to start having control over the objects themselves,” Grosser says. “It’s naive to presume that that isn’t coming down the road.”

The NFT story also resembles Second Life more and more. (For those of you who don’t remember Second Life, see here) Both have their own currencies and their own virtual spaces and real estate.  Sotheby’s has opened a virtual gallery in the crypto sphere.  The language of its announcement is remarkably reminiscent of that once used to tout Second Life: “Sotheby’s has opened its ‘first-ever virtual gallery’ utilizing Decentraland, according to a note from the company. Decentraland states that Sotheby’s occupies a ‘prime location in Decentraland’s Voltaire Art District.’ The digital gallery is a replica of the auction house’s New Bond Street galleries in London.”[vi]  Indeed, yes, it “had to happen,” as did the “museum” space in the crypto sphere which can be found here.

To sum it all up, we can reliably turn to Professor Jonathan Zittrain of the Berkman-Klein Center at Harvard University, who reports that “The Internet is Rotting.” This is required reading for libraries, archives, digital collections – anyone confronting the permanency issues of digital media and of course of NFTs.  The article can be found here.

[i] https://www.artspace.com/magazine/art_101/in_focus/duchamp-probably-didnt-make-the-fountain-urinala-look-at-the-dada-woman-who-likely-authored-the-56084

[ii] https://press.philamuseum.org/marcel-duchamp-and-the-fountain-scandal/

[iii] https://www.moma.org/magazine/articles/547

[iv] https://digitalcommons.law.byu.edu/cgi/viewcontent.cgi?article=3237&context=lawreview

[v] https://www.moma.org/magazine/articles/547

[vi] https://www.crowdfundinsider.com/2021/06/176246-had-to-happen-sothebys-opens-virtual-gallery-in-new-nft-world/

© Naomi Korn Associates, 2021. Some Rights Reserved. The text is licensed for use under a Creative Commons Attribution Share Alike Licence (CC BY SA)

Disclaimer: The contents of this blog post are based on the assessment of Naomi Korn Associates Ltd at the time in which the resource was created (August 2021). The contents should not be considered legal advice. If such legal advice is required, the opinion of a suitably qualified legal professional should be sought.

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