The (Social) Media is the Message: Theories of Liability for New Media Artists

Abstract

There is a trend in Internet art away from simply using social media as a tool, and towards actually challenging the platforms themselves. This note proposes best practices for new media artists whose works violate social media terms of use. By examining three works of art on three different social media platforms — McNugget by Chris Alexander, Face to Facebook by Alessandro Ludovico and Paolo Cirio, and High Retention, Slow Delivery by Constant Dullaart — this note will clarify the networks of liability that emerge when an artist undertakes a conceptual social-media based work. Given the thorny landscape of user agreements, the uncertainty of whether such works qualify for protection under the Copyright Act, and the doubtful safeties under the Visual Artists Rights Act, these artists should look to the example of conceptual and post-modern artists to maintain their proprietary and monetary interests. This note proposes a program of best practices for such artists: entering into an indemnification agreement with a collector or gallery before executing the work; instituting take down measures to maintain the privacy of unwilling, non-consenting third parties; and considering alternative monetization and licensing schemes for such works to remove them from standard streams of commerce.