Prompt 10: This Is Not A Prompt

[this to be edited, just to make a start] In 1999, Nicolas Malevé organised with Constant the event Copy.Cult which discussed various aspects of the culture of the copy. It sparked the beginning of many interventions, activities and reflections on authorship and ownership that have been defining for the commitment of Constant to Free Culture. Asking him many years later to revisit that history and to rearticulate some of it in the form of a prompt, was asking for trouble. He responded with a collection of reflections that we are happy to share with you here.

Dear Femke and Eva, 

This is an aggregate of notes and quite a mixed bag of biographical notes and half formed ideas. After the conversation with Femke, I realised that my plan to write something about the relation between AI and free licenses was somehow fading in the background. So many things came back as a sentence Femke said stayed with me, pointing back to the question of appropriation. “There are circumstances in which I don’t want to ask for permission.” I am not sure if I have anything new to say, after all you did the research on the limits of appropriation. But to some degree this conversation raised anew the relation between licenses and art, and in particular the relation to the thorn notion of art’s autonomy. This might seem strange because it didn’t bother me one bit for more than 25 years and CC4r barely mentions art, it is cited as a practice among others “collective documentation, hybrid productions, artistic collaborations or educational projects.” Which is I think very sound. 

Nevertheless, my relation with free licenses begins with a very art-oriented debate. I remember Antoine Moreau presenting the Free Art License as a parachute. Referring to Arthur Danto, Antoine said that the Free Art License was the parachute that would ease the landing of art on the ground and in the world. This idea touches upon the end of a narrative that situates art in an autonomous sphere. The license responds to the needs for what art has become – and should I still call it art? - when the necessity of creating relations and assuming dependencies overcomes autonomist strategies that verged on isolationism. At the time, this idea resonated highly against the agonizing version of modernism that I had to endure during my art education. In this perspective, the Free Art License was an instrument to probe and establish relations of reciprocity. It is particularly striking that against the version of art that pretended to obey only its own rule (auto nomos), this move implied the adoption of the rule of law. It created an awkwardness in the practice. I think of this wonderful essay where Femke talks about a moiré effect as a form of productive insecurity. It applies to this presence of the law introduced by the license in the practice. In many ways, the tension it created was the real gift of the license. It forced conversations (and as we know “conversations are the best, biggest thing that free software has to offer”). It is probably where Creative Commons missed the point by smoothing out the frictions. 

But the introduction of contractual heteronomy was a hard break from autonomy and limited the extent to which relations should develop which had some violent aspects. In a tense discussion about the soundness of supporting the artist Mouchette sued by the heir of Robert Bresson for having borrowed images from his film, Antoine insisted that, for the Free Art License community, artists were not above the law and therefore Mouchette should not receive unlimited support. Appropriation has always been treated by suspicion from the point of view of the FAL community and, in retrospect, my own attitude has been more than ambivalent in this respect too. But for Antoine, things were clear. As an artist acknowledging the consequences of the end of art history meant heteronomy, period. Cornelia Sollfrank’s work has probably distilled this question to a high provocative level with projects such as the net art generator. The way she frames this question in the conclusion of her thesis Performing the paradoxes of intellectual property reminds me of the conundrum we were facing (and I still am). Discussing the defence adopted by Carlin who defended Jeff Koons accused of plagiarism, she writes:

As Stapleton (2002) reports, the defence strategy was mainly built along the argumentation of Carlin (1988), who had made a strong case for appropriation art to be considered as fair use in his paper ‘Culture Vultures. Artistic Appropriation and Intellectual Property Law.’ Carlin’s basic argument was to justify appropriation art as a legitimate form of conceptual art practice by situating it firmly in the tradition of earlier appropriative practices. He suggested that artists should be allowed to infringe copyrighted material for “valid conceptual reasons” (p.138), thus granting artists a privileged position ‘outside’ the law. In Stapleton’s (2002) interpretation, this meant a complete undermining of postmodern critical theory and practice, which in fact had set out to break down the ‘autonomy’ of art. Granting artists an exceptional position would introduce a hierarchy “between ‘regular’ copyright holders and ‘super’ copyright holders, with legal rights to appropriate work from the first group” (Stapleton, 2002, p.260), thus also re-establishing the distinction between low and high culture. What was most striking in this attempt to legitimise artistic appropriation, according to Stapleton, was the way in which appropriation art’s initially radical impetus was eliminated by trying to make space for it ‘within’ the law. It meant ‘reforming’ appropriation art and “steering it away from its radical political critique of property relations” (Stapleton, 2002, p.259). Contextualising Carlin’s text–as well as the Koons case–within the emergence of the knowledge economy, Stapleton points out the relevance of this strategy as the conciliation of appropriation art, with copyright being the regulatory structure of what was going to become a multi-billion dollar industry.

This quote suggests that another factor made the introduction of the rule of law appealing at the time. It was dialectically responding to the contractual appropriation of everything and the increasing commercialization of the art world as well as cultural production more largely. As “artist fallen on earth” or “cultural practitioner”, it felt that with the license we could respond in kind. In this perspective the license worked on two fronts, the break from autonomy and the acknowledgement of / response to the increased legal mediation of cultural production. 

I felt, when I was active in Constant, quite a relief to be able to leave art on the side, to be able to practice on a terrain where this frame was somehow suspended. I would not have used these words back then but somehow I think that the license was quite efficient to keep art with a capital A at bay, to relativise it. And it felt useful to carve some space of cooperation in an otherwise quite competitive commodified cultural world. Yet looking at it from now, we were still very much benefiting from the cultural aura of art before the end of art and its sphere of autonomy. Constant was called an art and media organization, the funding was still much from the arts although in an extended sense and our regular collaborations with arts institutions gave us license (no pun intended) from our funders to do the kinds of things we were doing. [I realise this needs to be nuanced as the relation to design for instance consolidated the association very much as well as projets de quartier or Digitales which had more social framings.] 

The reason why I am going through all of this is that, when we try to leave the permission culture that is implied by licenses such as FAL, the spectre of autonomy looms in again. As you said the other day, there are circumstances in which I don’t want to ask for permission. And I agree, I too really don’t. But how can we start to be above the law without recourse to exceptionality in a world legally regulated and already invested in property? Perhaps my prompt if I find the right words for it would be along the lines of revisiting autonomy which is a risky business. If not to find solutions to our dilemmas, at least to come to terms to its residual presence. To say the least it is not an easy path as autonomy is in many respects a toxic heritage. The never-ending waves of #me-too revelations of the privilege and entitlement that derive from the exceptional character of the male genius or, to refer to one of your session, the highly problematic practice of cultural appropriation in the neo avant-garde are there to prove it. Clearly we don’t want the autonomy of Kenneth Goldsmith, Harvey Wenstein, Benoît Jacquot or Jacques Rivette. But I am also aware through interesting and frustrating discussions with Cornelia, Felix and Sven Lutticken as well as my friends from the Organ for the Autonomous Sciences that autonomy has a divergent political history and that its relations to heteronomy is more complicated than it seemed to me at first sight (especially after the trauma of art education) as well as calls to decolonize autonomy. 

On the other hand, clearly the need for strategies that engage effectively with the continuously evolving legal harassment in cultural settings (ie Documenta, Transmediale etc) is real. Not sure this is a matter for a license, but certainly the inquiry into legal strategies has not left its relevance.