"Where there is no gift there is no art." –Lewis Hyde

Artists have been both instigators and beneficiaries of the digital
revolution. But the delicate ecology that sustains that revolution is at
risk of being overwhelmed by the business of art. In the war brewing
over creativity in the digital age, artists are going to have to choose
a side–and a lot rides on their decision.

The entrepreneurs have been waiting at the gate for some time now,
perhaps fueled by journalists' obsession with how much a Web site should
cost.1 Until recently, the brick-and-mortar art world had little
economic incentive to take its online counterpart seriously. But now
that a critical mass of museums has taken the plunge and commissioned
artists' Web projects, the more adventurous dealers are testing the
waters, wondering whether they should cast in a hook to see if any
forward-thinking collectors would take the bait. Some artists–
especially those who already have a beachhead in the art market–are
delighted at this prospect. But exchange economies tend to steamroll
gift economies; if the art market does take root in cyberspace, we have
to make absolutely sure that it doesn't overrun the precarious ecosystem
that gave rise to the rich global community we call digital art. For
property, intellectual or personal, is the enemy of art.

This essay offers neither a Marxist attack on personal property nor a
rosy vision of George Bush writing artists a fat check every year. It is
simply an acknowledgment of the fact that a gift culture dies if people
stop giving. Making art into property helps plenty of folks–even a few
artists. The problem is, it cripples artists more than it helps them, by
covertly impeding their power to create, to get paid, even to give.

CREATING

Artist Ilya Kabakov claims that our society needs artists not to create
more information or imagery–we've got enough of that already–but to
recombine and envision the culture we already have. Fortunately, today's
artists have tools that enable them to reinterpret culture as never
before. Digital sampling has transformed music, data mining is a
critical piece of Internet art, and the reinterpretation of classics is
a rich source of contemporary literature. Yet as artists have been
moving in this direction, lawyers have been moving in the opposite one,
toward prohibiting the re-use of culture. So they've sued 2LiveCrew for
sampling Oh Pretty Woman, Arriba Soft for re-framing Leslie Kelly's
photos, and Alice Randall for rewriting Gone with the Wind from the
slave's perspective. Property–intellectual property–is their
rationale.

Intellectual property lawyers running amok have extended the term of
copyright eleven times in forty years. It is literally illegal to write
software to fast forward past commercials on your DVD. If Senator Fritz
Hollings' bill prevails, it will be illegal to sell a fully programmable
computer that can run multimedia.

Intellectual property isn't all bad.2 We probably should fine those guys
on Canal Street who sell hot copies of Photoshop for $30. The supposed
attempt to protect *artists* via expanded copyright protections,
however, is just a smokescreen for guarding corporate profits.

The root of this problem is not the "intellectual" part of intellectual
property, but the "property" part. For intellectual property isn't the
only possible pollution of the creative ecosystem. The art market's
presumption that art is physical property also serves as a smokescreen–
and not just for digital artworks.

GETTING PAID

In principle, there is nothing wrong with wanting to make a living as an
artist. What's wrong is the perception that our society's art market
will ever make that possible for more than a token few.

The folks this market benefits most are the middlemen: auctioneers,
dealers, critics, art school faculty. The meager salary I reap as a
curator is premised on a plentiful supply of art to choose from, good
and bad. If there are only three artists in town–no matter how good
they are–you don't need museums and magazines to point them out to you.
The plentiful supply of art in our culture is the product of the
unrecompensed labor of countless artists working away in their studios.
For no great art was ever made in isolation; indeed, good art plays off
the expectations developed by bad artists. There is no way for a market-
driven art world based on finding and immortalizing superstars to
survive without a rich culture of art to draw from. Yet to say the art
market helps the starving artist is tantamount to saying the lottery
helps the poor: it profits a tiny percentage, and distracts the rest
from their impoverished social position with dreams of sudden affluence.

Leaving aside artists as a class, the evidence that the market has
encouraged art that better serves society is pretty scant. It's
possible, to be sure, that the need to find a marketing niche is
responsible for the pluralism apparent in recent contemporary art.
Unfortunately, artists who find such a niche also find themselves caught
in what Joseph McElroy has called "brand slavery"–the inability to sell
works outside of a signature style for which they have become known. The
market also discourages artistic paradigms that depart from the model of
solitary genius; I've had dealers admit to my face that they can't take
on collaborative work because it won't sell.

Even those selected by the market can end up hostages to it. Musicians
and writers gladly sign away their rights for the chance to publish with
a major record or book label. Even terms written explicitly into a
contract can be meaningless if the cost of litigation is prohibitive for
the struggling artist.3 In my gallery experience as a visual artist,
I've had to build pedestals, repaint walls, design, print, and mail my
own announcements–and then lose 50% commission on anything I sell.4

But what proof is there that artists would bother to make art–much less
curators exhibit art and critics write about it–if there were no market
to sell it and no copyright to protect it? It turns out there is a vast
and vibrant artistic community for which the number of artworks ever
sold to a willing buyer can be counted on one hand. Though scarcely a
decade old, this community has produced more artistic genres and
manifestos, public exhibitions, and critical writing than the market-
driven artworld has in the past three decades. It's been more democratic
and geographically diverse; statistics indicate that its audience is at
least as large as visitors to galleries and museums. This body of
evidence is right under your fingertips. It is the Internet.

The invisible hand is a theory. Copyright is a theory. The benefit of
propertyless art is a fact–a global, instantly accessible fact.

But that may change, now that Internet art is finally gaining a foothold
in galleries and museums. Ironically, it is online artists who have the
most to lose from the grafting of an exchange economy onto this
extraordinary refuge from property. For market influences threaten to
carve up their vital public sphere into separate domains of private
ownership. Say goodbye to connective art like Shredder, Netomat, and the
Impermanence Agent. Internet artists eager to usher sales of their work
may end up trading their wildlife refuge for a zoo.5

Can't Internet artists have their cake and eat it too–sell their work
and still have it accessible online? The problem is, dealers who play by
the rules of property will want to offer collectors exclusive viewing
rights. Even if artists try to sell those rights themselves–say, by
offering art online via subscription or pay per view schemes–they may
find themselves in the same predicament as their dot-com predecessors.
Seventy percent of adults can't see themselves paying for *any* form of
online content.6 Conditioned by Napster, free e-mail, and open source
software, the general public has got it into their heads that the
Internet is for everyone. And they're right.

GIVING

Property's apologists might insist that giving art the status of
property doesn't impede its ability to be given away. Wrong. Artists
*are* constantly giving, in the sense of working without pay–yet
property law makes sure that artists aren't the ones empowered by giving
art. If you make art to give away, you won't show a profit on your
income tax return, and the IRS will reject as a "hobby" expense your
attempt to write off your studio rent. Even if you show a profit, you
can only write off the cost of materials for any charitable donations,
whereas the *collector* of your work can write off the market value. So
if Robert Rauschenberg gives a white painting to the Menil Collection,
he gets a $100 tax break to cover the stretcher bars, canvas, and tube
of titanium white. If he gives it to a Rockefeller and he gives it to
the Menil, Mr. Rockefeller gets a $100,000 tax break.

If you think artists don't get an even break giving away art while
they're alive, just wait until they're dead. My father, a second-
generation abstract painter, was well known in the 1950s, but his market
shrank when he moved away from New York City in subsequent decades.
Nevertheless he continued to paint prolifically and had hundreds of
unsold works in his studio when he recently died. As heirs, my brother
and I were faced with the dire prospect that the IRS could take his
asking price for a painting, multiply by the number of paintings in his
inventory, and then levy taxes on this multimillion-dollar figure. But
paintings aren't chairs or bolts; you can't just liquidate them at the
drop of a hat. I'm sure my father thought of his artistic legacy as a
financial safety net for his children, but it has become a road straight
to bankruptcy.

Nor are there many options for artists and their heirs to avoid being
saddled with "property debt." Establishing a foundation to support a
dead artist's work sounds nice, but it requires gobs of liquid capital
and entails self-dealing rules that prevent beneficiaries from being
decision-makers. Non-traditional bequests are even more costly; gay or
lesbian partners of deceased artists, for example, aren't allowed the
million-dollar tax exemption of legal spouses. After participating in a
conference on estate planning for artists, painter Philip Pearlstein
summed up his assessment in the handbook published by the conference's
organizers:

"When I die, my studio will have to be emptied of all my
paintings….once the stuff is in the moving van, where will it go?
After all these years of painting, have I simply created a terrible
burden for my wife and children? They will have to give directions to
the driver of that van. It almost seems that the easiest solution would
be for them to take a few souvenirs and have the rest driven to the town
dump."

Unfortunately, even Pearlstein's draconian solution wouldn't prevent his
family from paying inheritance taxes, for they're based on the estate's
value at time of death. You can't give property away to avoid
inheritance tax; you can't even avoid throw it away. Attorney John
Silberman once asked the IRS how they would judge a body of works that
were made purely for art's sake, with little commercial potential. The
response was, "If you do not want to pay taxes on them, destroy them
before you die." 7

Which is exactly what artists should do: destroy their artistic property
before they die. But how can you destroy artistic property without
destroying art?

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