Wikipedia Art Pushes The Elastic Boundaries Of Fair Use
UDPATE, 5/1/09: Wales got back with us with his comments about the matter. They are as follows:
"I originally joined the [Wikipedia Art’s Facebook] group because I assumed – based on the name – that it was a sincere group of Wikipedians interested in improving entries about art. I only later was told that it was a group dedicated to vandalizing Wikipedia as a publicity stunt as an alleged bit of performance art, and of course I don’t support anyone vandalizing Wikipedia.
"You wrote: ‘Wikimedia founder Jimmy Wales, who did not return request for comment, seems rather conflicted at this point. Wales was signed up as a member of the Wikipedia Art Facebook group until things got legally dicey.’
"That’s ridiculous. I am not at all conflicted, nothing ever got legally dicey in the least. I join and leave all kinds of facebook groups all the time, for all kinds of reasons, just like any other ordinary person, and I don’t appreciate people reading tea leaves when I’m so easily accessible for a comment.
"The reporting on the situation was widely in error, mostly due to the EFF’s erroneous blog posting. There was never a legal threat, no action of any kind, and there is no intention to take action of any kind. We asked them politely to put up a legal notice distinguishing themselves from Wikipedia, and they did. Show’s over, nothing to get excited about.
"A group of trolls managed to manufacture for the media a publicity stunt. It’s disappointing how easy it was for them to pull it off.eople reading tea leaves when I’m so easily accessible for a comment."
As illustrated in the comments below, we did attempt to contact Mr. Wales for comment and did not hear back.
The question of what constitutes art may not be as difficult to answer as what constitutes fair use. Though fair use isn’t a new legal concept, it’s never been as challenged as it in the Internet age.
We arrive at the latest conundrum regarding both art and fair use by way of Wikipedia as parent company Wikimedia attempts to enforce its trademark as gently as possible; a heavy hand in this case would belie the organization’s founding principles of openness and creative commons licensing.
The current debate begins in mid-February. A Wikipedia page titled “Wikipedia Art” survived just 15 hours of spirited debate before meeting swift and controversial deletion along with the deletion of the article’s debate history. The creators of the page—contemporary, mixed media/conceptual artists Scott Kildall and Nathaniel Stern—made no sustained objection to deletion, as deletion subsequently became a part of the evolving art piece itself, and moved the project to a new domain: wikipediaart.org.
A Wikipedia article itself being a work of art is now only the secondary debate. Editors debated this point in discussion, though the general contemporary consensus seems to be that something is art if one calls it art. The nature of the project, though, influenced the nature of the debate and informed the art itself: Would anonymous, collective authority allow such an injection into the Wikipedia reality?
Some editors felt the subject at least deserved reasoned debate. Others objected to articles being self-referential, mirroring a debate long settled by postmodernists of previous eras, coming out in support of that very concept. Still others compared the intrusion to drawing in the margins of an encyclopedia or graffiti in the library while all of this debate unwittingly was absorbed by the art project itself, now a self-propagating and evolving exploration of authoritarian interventionism and shared hegemonies.
Which is probably why it was promptly (and perhaps ironically) deleted, reportedly along with the discussion history (since reposted), by a myopic 18-year-old, and subsequently endorsed by the rest. A reality with such porous and elastic boundaries is often as disturbing to the young products of structure as it is to the creators of structure; Wikipedia Art absorbs all that touches on it, probably this article included. By debating the art one becomes part of it, likewise by deleting it; it’s suddenly rather immortal in that sense.
Good art is infinitely debatable, and in that way it finds an unlikely relative in law. As mentioned earlier, the artists did not object to deletion as deletion became a part of the art of it. But Wikimedia is objecting to the use of its trademark in the domain wikipediaart.org, and as such even the demands by Wikimedia attorney Douglas Isenberg that the artists transfer ownership of the domain are now part of the project itself.
Wikimedia’s demands are straightforward and atypical of lawyer-crafted nasty-grams sent from other companies in that an amicable resolution is sought in the sole pursuit of trademark protection as the company is obligated to do. Threats were implied rather than expressed, but nonetheless attracted the attention of the Electronic Frontier Foundation, a lawyer for which defended the artists’ fair use of the Wikipedia name and threatened to file for summary judgment if any further “threats” are made.
Uncharacteristically of these types of disputes, Isenberg took issue with the idea Wikimedia had made any threats whatsoever, only that he was asked to investigate the matter and try to reach an amicable solution. Obviously Wikimedia is in a tight spot; they don’t want to appear an enemy of art or fair use or collaborative projects—that’s a bit like tearing down its own principles.
Wikimedia founder Jimmy Wales, who did not return request for comment, seems rather conflicted at this point. Wales was signed up as a member of the Wikipedia Art Facebook group until things got legally dicey.
Whatever happens in this truly odd case—nothing, in all probability—the fair use debate rages on with even less clear-cut answers. While the Associated Press launches infringement claims against everyone from artists to Google to those who link to its content, other litigious organizations print off DMCA notices the way the government is currently printing money. Unlike an art debate, though, the fair use debate has major implications for the future of the Web. But, like the art and pornography debate of last century, the debate needs its day in court.
In an era of settlements and compromise, though, it’s hard to know if that will happen.