Let’s Get Digital!

February 1, 2016

By David Honig, Esq.

In 1946 the University of Pennsylvania’s Moore School of Electrical Engineering unveiled the Electronic Numerical Integrator and Computer (ENIAC) introducing the world to what is often referred to as the first general purpose reprogrammable computer. Although ENIAC’s origins were military, the development of ENIAC was funded by the United States Army, its legacy is much more. Computer technology, evolved from a tool for the military, into, among other industries and applications, a tool for the arts and spawned a new genre: digital art. Some of the pioneers of digital art include Lillian Schwartz and Gopakumar R.

In the twenty-first century, digital art is a fast growing medium even if it is not fully understood or integrated into the mainstream art world yet. Schools such as the University of Oregon, the University of Washington and Pratt Institute offer degrees in digital art. Additionally, the British Broadcasting Corporation (BBC) has funded The Space, a website that allows its users to explore digital art that has been commissioned or licensed by the website. According to BBC News, the BBC has already spent £3.6 million on The Space with another £8.1 million committed to the project. In addition to the BBC other major players in the art world have invested in digital art. Since 2002, the Whitney Museum of American Art has hosted an online gallery for digital art called Artport. According to the Artport website, it “provides access to original art works commissioned specifically for the artport by the Whitney…”  

As digital art becomes more accepted, purchased and commissioned by private collectors and institutions, like the BBC and the Whitney Museum, a new problem arises, namely dealing with issues of authenticity and reproducibility. The problem of authentication and unauthorized reproduction is often present when any form of copyrightable content is stored as a digital file. However, digital art presents a unique take on issues of authentication and unauthorized reproduction because unlike movies or music, the value of art is partially based on scarcity and the ability to prove authenticity.

When buying a piece of art the purchaser usually wants to know the piece is indeed original, if it is not unique than how many other copies are there, and that the work will not be endlessly (re)produced. Unlike, a physical work of art, digital art can be reproduced easily with the push of a button. This possibility for reproduction, as both the music and film industries know, affects the market for the genuine article.

Unlike in film and music, the producer and consumer in digital art are much more likely to be aligned in their desire to prevent the ability to reproduce the work. In the sphere of entertainment, the producer does not want film or music to be easily reproduced because unauthorized copies usually negatively impact the market for the good, but the consumer usually wants the ability to make copies so as to enjoy the song or movie on multiple devices without having to purchase a new copy. It is unclear whether when it comes to digital art, the consumer would wish to have multiples for different devices.

The ability to easily digitally reproduce a work also affects value of digital art because of issues of authenticity. Just like any other piece of art, the value of digital art is supported by the ability to prove that a work was indeed produced by the artist. When a work is easily reproduced the fact that it looks, and is in fact, exactly the same as the artist’s work is not enough to prove authenticity. These issues dealing with unauthorized reproduction and authentication have led to the use of innovative technologies, ranging from the simple and cumbersome to the complex and unseen, to find a possible solution.

The easiest solution to the problem of unauthorized copies and knowing whether a work is original would be to use physical or digital certificates of authenticity. Just like physical art, digital art can be accompanied by a certificate of authenticity, either a printed piece of paper or a digitization of the same. In fact, a certificate of authenticity accompanies every piece of digital art sold by online art gallery Sedition. While many people would be able to access the work of art, only the holder of the certificate would actually “own” said original or authorized work. This creates an issue of whether the work or the certificate is more valuable.

Another solution, adding a watermark to the image, is also the most cumbersome and somewhat ineffective. A watermark could tell anyone viewing the artwork the identify of the author or where the work was originally posted. But, watermarks won’t prevent copying nor will they show who currently “owns” the “real” version of the work. There are two different types of watermarks that could be applied to digital art, what will be called traditional watermarks and digital watermarks.

A traditional watermark works by embedding an image or word onto the work to signify where the work was originally posted or the author of said work. A traditional watermark could possibly affect the viewer’s perception of the work because anyone viewing the work would be disrupted by the mark. Another problem is that traditional watermarks can be digitally removed with software such as Adobe Photoshop. Ultimately, a traditional watermark is vastly limited in its effectiveness.

A better solution would be to use digital watermarks. Digital watermarks are similar to traditional watermarks in the sense that both are used to store information – in this case that the article is genuine. The key difference is that with a digital watermark the information is embedded within the file instead of on the surface of the piece of art for all to see. A digital watermark still has some of the same flaws of a traditional watermark, it does not prevent the copying of data nor is it able to signify that it is the “original” or “authentic” version of the work. In fact, every time the work is copied so too is the watermark since it is embedded in the file.

There will never be a way to completely prevent the piracy of digital files, it is the nature of the Internet and digital media that if someone wants to copy a digital file they will find a way. However, there are ways to mitigate the damage to the value of authentic works that results from unauthorized copying, this issue is about protection for the purchaser which is different from the issue of copyright which deals with an author’s right to reproduce. Maybe because of all the shortcomings of watermarks many in the art world have turned to cryptocurrencies for the answer.

Cryptocurrencies, such as bitcoin, record the chain of ownership utilizing a database known as blockchain. Blockchain is a type of database that prevents tampering or revising. This means that once the work’s provenance is embedded into the file it can’t be modified. That’s not to say that future owners will not be able to have their names added to the blockchain it only means that any name placed on the blockchain cannot be removed.

Companies such as Monegraph, Ascribe and Verisart all use blockchain technology to catalogue digital works of art and their owners. Each company has their own way of using blockchain as well as other methods such as licenses to further enhance the rights of the artist and the purchaser. Since blockchain is a decentralized database the recording system will most likely be universal regardless of which provider the work was originally purchased through. Meaning, if someone buys a piece of art from Monegraph future sales probably do not have to be recorded through Monegraph.

It is unlikely that the internet’s penchant for copying digital files will ever stop. More innovations to prevent illegal copying will always be discovered and some coder somewhere will always find away around those methods. But people who buy art frequently value more than pure entertainment delivered by digital art, instead they buy art as investment pieces. So, although there might be millions of copies of a particular piece of art floating around for free on the internet only one, or a designated few, would truly be the work and only that version will be certified and retain any value. Most investors will most likely be hesitant to be an early adopter but that is usually the case with any new technology or medium.

That being said, a secondary market currently exists within Sedition. Through Trade, collectors can sell digital art from their collections. Sellers set the price they wish to receive and buyers bid on the work. The seller has the option to accept any bid even if it is below the set price. In addition to having a secondary market Sedition sells works by Gopaumar R. and Damien Hirst. Clearly there is enough of an interest in creating digital art that major players in the art world are not only experimenting with creating digital art but also with the new digital art dealers. What remains to be seen is whether a market for this type of art can be sustained.

In the concluding chapter of her book, The Computer Artist’s Handbook: Concepts, Techniques and Applications, Lillian Schwartz states that “[t]he computer also represents a process. But it is a polymorph of mathematical and logical design. What it can do is subject to what we believe it can do for us.” Just as the art itself must come from human creativity, methods for protecting the same must come from human ingenuity. As time goes on and digital art becomes more accepted new and better methods of creation, distribution and protection will be developed as well.

About the Author

David Honig is a post graduate fellows at the Center for Art Law. He is a member of the Brooklyn Law School class of 2015. While attending law school he focused his studies on intellectual property and was a member of the Brooklyn Law Incubator & Policy (BLIP) Clinic. He is admitted to New York and New Jersey state bars.

Disclaimer: This article is for educational purposes only and is not meant to provide legal advice. Readers should not construe or rely on any comment or statement in this article as legal advise. Instead, readers should seek an attorney.