Copyright and the Commons: Eileen Simpson and Ben White’s Struggle in Jerash (2009)

David Joselit’s After Art is devoted to analyzing the scale and speed at which images proliferate today as well as the ways in which these trajectories have been taken up in recent artistic practice. In the midst of a discussion of the work of Pierre Huyghe, an artist who has dealt extensively with issues of intellectual property, a footnote with an at best tenuous relationship to the body of the text rather perplexingly deems a discussion of copyright beyond the scope of the book.¹ As that body of laws that serves to regulate the scale and speed at which images may legally proliferate, one might assume that considerations of copyright would play a significant role in Joselit’s text. But it is this exclusion that allows Joselit to set up what is perhaps the book’s grounding opposition, between what he terms “the free ‘neoliberal’ circulation of images” and a “fundamentalist” attitude that “posits that art and architecture are rooted to a specific place.”² There is no question as to where Joselit locates his own allegiances in this conflict: for him, neoliberal circulation proposes exciting new forms of connectivity, while the fundamentalists cling to the rather unfortunate privileging of discrete objects and fail to recognize that contemporary existence is characterized above all by ecstatic mobility. Despite the centrality of the logic of privatization to the economic philosophy of neoliberalism, the privatization of visual culture through the aggressive enforcement of copyright nowhere enters into Joselit’s application of this term to the realm of images.

Copyright’s absence here takes on a strategic importance, as it allows Joselit to map an opposition of present/past onto that of neoliberal movement/fundamentalist stasis and make an epochal claim for ours as a time of unfettered transmission and networked relationality. A consideration of copyright law, and particularly the extent to which it has rigidified over the last twenty years, would temper the apparent freedoms of neoliberal circulation that Joselit values by introducing a discussion of a pervasive form of control irreducible to the fundamentalism he can so easily dismiss as old-fashioned. During this period, aggressive legislation and prosecution, copyright enforcement robots, and digital rights management systems have transformed a set of laws originally formulated to stimulate creativity into a framework for profit-motivated policing. In particular, the Digital Millennium Copyright Act (DMCA) of 1998, passed by a unanimous vote in the U.S. Senate, heralded a new era of extremism.³ But for Joselit, an assessment of the realities of copyright in the post-DMCA context would reveal its ability to render sclerotic the connective circuits he holds so dear.

Such an affirmation of unbridled circulation is exemplary of a pervasive tendency among artists and critics engaging with the contemporary mobility of images, though it is seldom expressed as explicitly as it is in After Art. It is a tendency that cuts across a wide variety of aesthetic and political investments to celebrate promiscuous circulation as the sine qua non of contemporary visual culture, often implicitly replaying the long-standing but spurious association of digital technology with freedom, democracy, and user autonomy. However, just as it is necessary to recognize the Internet as a technology of both freedom and control, so too is it imperative that the contemporary circulation of images is understood as both more unmoored and more restrained than ever before. In 1994 John Perry Barlow, founder of the Electronic Frontier Foundation, wrote that “Intellectual property law cannot be patched, retrofitted, or expanded to contain digitized expression any more than real estate law might be revised to cover the allocation of broadcasting spectrum”—and yet this is exactly what has occurred.⁴ Though such revisions are certainly not watertight, they cannot be ignored. Moreover, this development is not particularly surprising; after all, the history of copyright legislation is nothing other than the history of grappling with technological innovations that challenge it. As Martha Buskirk has noted, “The initial establishment and the subsequent development of copyright principles should be understood as a series of responses...