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Here We Go Again: NFTs and the New-Old Problem of Art Theft

here-we-go-again:-nfts-and-the-new-old-problem-of-art-theft

We are in unprecedented times everywhere, including the state of visual arts. But as a wise sage (Taylor Swift) sings, we have also seen this film before—and we didn’t like the ending.

Maria Popova, the author of Figuring, writes that “There were two primary projects of early photography: to capture art and to liberate science.”

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In the era of the mid-1880s, pictures were known as daguerreotypes, after Louis Daguerre, who put the process together. They were printed first on copper plates rather than photo paper.

Some of the earliest captured subjects were sculpture, because new forms of art tend to use as reference what was established before: ergo sculptures, as one of the two facets of figurative arts that were seen as a legitimate endeavor (the other being painting) were a popular subject.

In New England, the premier daguerreotype studio was Southworth & Hawes, and they saw in sculptures the chance to showcase the visual potential of the new medium.

“Unlike their human sitters, even the most classically beautiful of whom were either too fidgety for the long exposure times necessary or too natural in their stillness, marble masterpieces emanated a seductive proximity to perfection and remained unflinching before the camera,” describes Popova. Remember that the exposure time for a daguerreotype took about three to 15 minutes.

Southworth & Hawes started selling daguerreotypes of The Greek Slave by the neoclassical sculptor Hiram Powers, which depicted the sadness of a nude woman in shackles. The piece became the first famed American work of art when it was shown in the 1851 Great Exhibition in London.

Before that, it made an appearance in Boston in 1848, down the road from the studio of Southworth & Hawes. So intrepid partners Albert Southworth and Josiah Hawes went and captured the statue on their machine.

They did this without permission. To capitalize on the enthusiasm for the work of art, Popova writes that Southworth & Hawes began selling daguerreotypes of it, which in turn “popularized the notion of daguerreotyping itself as an artistic process in allegiance with the figurative arts.” Photography as a legitimate art form has its roots in this act of what is, essentially, stealing.

Henry Fox Talbot, one of those who discovered the process of early photography (but not in tandem with Daguerre, although both discoveries happened nearly simultaneously) saw the future in how “the photographic reproduction of artworks – not only statues but manuscripts and paintings – would forever alter the course of visual culture, writing […] ‘Already sundry amateurs have laid down the pencil and armed themselves with chemical solutions and with the camera obscura.’”

I wonder what Talbot would think of today’s visual culture. I also wonder what role Southworth & Hawes would have to play today. If they had no compunction selling daguerreotypes of The Greek Slave, it stands to reason that perhaps they too would be behind the hawking of today’s mode of visual currency: the NFT.

Perhaps they too would be selling art with the permission of the artist, this time on the unregulated marketplace on the blockchain.

An unregulated marketplace 

If you only spent time on Twitter, it would be easy to believe that an NFT merely reflects what Dan Brooks on (new) Gawker calls an aesthetic deficiency:

“[And] this is why the future, [be it] NFTs […] looks so ugly and boring: it reflects the stunted inner lives of the finance and technology professionals who produced it. As the visual manifestation of cryptocurrency, NFT art combines the nuanced social awareness of computer programmers with the soulful whimsy of hedge fund managers. It is art for people whose imaginations have been absolutely captured by a new kind of money you can do on the computer.” 

Or in the words of Twitter user @ArtistMitchy: “I cannot wrap my brain around why someone would spend 2,000$ on a drawing of a monkey with leprosy.”

The New Old Problem of Art: Piracy in the Marketplace
Photo by 愚木混株 cdd20 on Unsplash

But a lot of independent artists whose work is involved in the NFT market do produce work that is of a different mold. The only problem is, some of them have no say in being involved in the market.

Aja Trier, whose work deals with combining established art (Van Gogh’s “Starry Night”) and nods to pop culture (Starry Night with dogs, dinosaurs, and set in Mordor) told NBC News that listings of her work were uploaded on OpenSea, the go-to marketplace for NFT art. 37 of them were sold before she was able to put a stop to it.

“They just kept taking and remaking them as NFTs,” she says. “It’s so flagrant. And if it happens to me, it can happen to anyone.”

Once hyped as a way for independent artists to monetize their art in the digital space, and to make arts patronage more inclusive, the quick growth of the industry has opened the door for a spate of problems, most especially piracy and fraud.

Anyone can create an account on OpenSea and start selling whatever digital images they want to upload. The barely moderated platform means the onus is on artists themselves to patrol the site and try to get their work taken down. 

This involves reams of digital bureaucratic tape: a seller doesn’t need to provide proof of ownership or use their real name to sell, but an artist filing a notice for copyright has to share personal information to prove they are the owner of their work.

Same old new thing 

So what is the recourse for artists in this current era of art theft? DeviantArt is a digital art platform that in yesteryear used to be known as the space for fan artists of pop culture media (movies, TV, books, etc.) to upload fan arts of that media (Ron and Hermione kissing, etc.) But now it is also scanning blockchains used by NFTs to alert artists on the site when their work is being shown on listings. 

For copyright purposes, CXIP Labs is a start-up that aims to create a streamlined process for verification of NFTs, by providing a minting service that would work on OpenSea and other marketplaces.

Founded by IP lawyer Jeff Gluck, CXIP is a platform that works to provide means for verification and can be integrated into any marketplace. “The idea is for all market participants to adopt this better, standardized minting solution, creating consistency and compatibility through the industry,” says Gluck, in an interview with Art News.

After a United States Supreme Court decision in 2019 ruled that artworks must be copyrighted for artists to be legally protected, Gluck realized that the go-to system was antiquated and difficult to use. Anticipating that this would be a problem in the new world of NFTs, he put together an online portal for artists to copyright their work.

An authenticated NFT by CXIP would have a verified symbol (like Instagram’s checkmark) that indicates to buyers that the works are coming directly from artists. This would be registered on the blockchain.

Each NFT platform has its minting service on the blockchain but can vary in quality, which means artists are less protected and it can be difficult to trade. CXIP aims to provide a standardized service for everyone, ensuring that artists across all platforms will receive royalties when their NFTs are copied and circulated online.

Despite all of this, the burden will remain on artists to watch out for their works. This can be a thankless task, especially for independent ones. To verify through CXIP means registering a copyright, and Gluck says that even that will not provide full protection in a court of law. “You can’t walk into a courtroom and say, ‘I put this on the blockchain, I can enforce my rights because it’s not recognized [as proof of ownership].’”

We have moved on from the “neoclassical sculpture, with its fusion of beauty and melancholy, surface stillness and interior tumult,” what Popova mentions was “the template of aesthetic and conceptual sensibility for the new medium.”

But while the art is different, the stealing is the same: “Art theft is nothing new. We’re just seeing it at a completely new scale with everything that’s happened with NFTs,” says Liat Gurwicz, CMO of DeviantArt.

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