Digitritus: virtual species or digital waste: ownership in the information age.

I will discuss how the anatomy of the technobody (1), along with its waste, can reveal what is more invisible than visible. The material I draw upon is produced as an element for a greater body. It is the digital waste by-products, or "digitritus," of the visual effects ("VFX") filmmaking process.

The use of digital waste raises issues such as the origins of corporate creative properties and the subsequent ownership of creative properties using digital waste. Corporations, congress and copyright laws aggressively guard the authorship of corporate creative properties. But who owns the discards, the shards that have never been seen, the throw-aways that have been converted into new forms with original content? Waste contains information, the essence of a culture, its histories, and can fuel the creative process. Who owns detritus? Is there a question of copyright infringement when digital detritus from movie productions is salvaged from the wasteland of the "delete" button and evolves into a new life form to produce other works of art?

Some of the discarded material falls through the cracks of corporate ownership into the reclamation center of the artist's imagination. Layers of "digitritus" lay hidden from view where the artist mines the space that lies between the conceptual and the commercial. Artists have taken some of these fragments of discarded material in order to rework and re-present them. The "texture map," an element used to produce virtual species such as animals and aliens, is what I have taken out of the digital dumpster. The "digitritus" of the texture map will be the focus of my discussion of ownership and copyright.

As a former artist in Hollywood's special effects industry and specifically as a 3-D texture artist, I have participated in the virtual evolution of dinosaurs, fish, whales, humans both dead and alive, parts of humans, aliens, airplanes, basketballs, and much more. You are meant to believe these as real, but in fact they are counterfeits of reality generated with today's technology. This work is unachievable without the use of computer hardware and software, such as 3-D Studiopaint, PhotoShop, Amazon Paint, Maya, Houdini, or 3-D StudioMax. I paint onto a 3-D wire frame model that has been converted from polygons or "nurbs" into UV (2) coordinates that allows me to simulate the process of painting a surface. The painting is then extracted from the 3-D surface, flattened and broken into patches of 2-D images called texture maps. This all occurs before it reaches completion in its process to build a virtual species. They are typically seen and experienced as the result, the realistic 3-D creature or object coming to life on the screen.

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Hidden within the digital film production process the texture map is a rarely seen 2-D image viewed solely by the texture artist. There are many changes and developments in the evolution of a texture map. Layers and layers of maps are produced in the process leading up to the final approval of a character within a scene. The deletion of the unwanted versions of most of these maps is required so that there is free space on the hard drive to store more information and the only version that is archived is the final version. It is the deleted texture map that I have salvaged from oblivion to evolve into a new form within a new context.

To put it simply, I skin virtual animals and objects. With this trans-mutated concept and context of skinning, meaning has shifted from the removal of the skin from a dead animal to the application of skin onto the animal or character to bring it into reality. Identification of meaning in the creative process thrives on the elastic moment that leads to a transformative moment that leads to the evolution of new meaning. The texture map is a site where new thoughts may erupt, where forms merge in the conscious unconscious.

The work I produced as a visual effects artist is contracted as a "work-made-for-hire" for Company. As a requirement to be hired, I must sign away any rights I may claim as the originator of any artwork that I produce while employed by Company. The Company becomes the "author." According to copyright law the "author" is the owner of the material. Here is an example of wording that is used for a work-made-for-hire contract. "[Company] is the sole, exclusive and perpetual owner for use in any and all media known or hereafter devised throughout the universe in perpetuity, of all rights, title and interest in the results and proceeds of [Employee]'s services, which for all purposes (including copyrights) shall be deemed a work-made-for-hire for [Company]; provided, however, if under any applicable law such results and proceeds are not considered a "work-made-for-hire," then [Employee] hereby assigns such results and proceeds to [Company] and agrees to execute any documents as [Company] may require to properly vest such rights in [Company]." the wording of the contract suggests that they could claim ownership to any creative project that I would produce while in their employment and the Company becomes the author of the material. Without accepting such an agreement there would be little possibility of being hired. So, as a work-made-for-hire it would seem the Company is the author/owner of everything that is produced by the artist while under their employment. This means that every creative utterance or product that is produced by the Contractor/Employee made while in service to them can be claimed to be authored by the Company, even work produced outside of the Company during non-working hours.

But what if it is "digitritus," the trash that is thrown out in the digital filmmaking process? Who owns the unrecognizable, the unidentifiable, where meaning is elastic?

There is a long history of artwork made of the endless waste materials produced by our society; Nancy Rubin, Ed and Anne Kienholz, Robert Rauschenberg, Aaron Donovan. The list will go on as long as there is trash. The right of the artist to appropriate, to make cultural commentary, to express new, relevant and critical concepts related to an existing cultural product is restricted and becoming even more so. Appropriation comes under the territory of "Fair Use" which has come under even greater limitations and scrutiny as it is interpreted within the recent copyright legislation of the Digital Millennium Act and the Sonny Bono Extension Act. Appropriation within the arts is a highly active area of contention with a history that precedes digital media. For example, Andy Warhol faced a lawsuit for the image he used in his silkscreen painting, Race Riot. Ironically, he settled the case by giving the original photographer another work of art that used an appropriated image from yet another photographer. In 1991 Robert Rauschenberg, known for his found object collage works, also bumped into copyright infringement. He has included in his works pages torn from magazines old photos, found scraps, and any order of discarded societal detritus. A suit was levied against Rauschenberg for a particular work that includes a page torn from an old issue of Time magazine. The page contains an ad for an automobile that is principally comprised of a photograph. Pete Turner, the photographer, succeeded in a suit against Rauschenberg for use of the photograph without authorization.

It did not matter that the detritus used was not an essential element of the work. Any discarded societal detritus could be used in place of the one selected by Rauschenberg. A line had been drawn for the artist to beware. Yet, that line slips around. If one considers a movie as a collage/montage you can see incidental copyrighted works appear. Copyrighted works that appear incidentally in movies are not actionable infringements, whereas works that are displayed more prominently may constitute an actionable infringement.

The film industry produces huge amounts of trash, both as content and as physical detritus. I will never forget the room full of film boxes that lined the walls when I first walked into an optical department where film elements are composited together to create a VFX shot. Every wall was covered with shelves of boxes that contained negatives, workprints, cover mattes, separations, holdout mattes, interpositives, internegative, and registered prints. All these elements, along with their failed attempts, are generated to create 3, 5, 8, or 10 seconds of composited footage. There was so much material! Much of it ends up in the dumpster.

Dumpster diving for discarded elements used in the making of films has been a practice undertaken by fellow artists. The use of discarded elements from the film industry and visual effects productions can be seen in the works by the renowned experimental filmmakers: Bruce Conner, Morgan Fisher, Pat O'Neil, and Chris Casady. These artists have taken elemental layers used to build the visual effect for a film and recycled them into original works of experimental animation. The source material from another film production is transformed. You will see a salvaged traveling matte act out a new role. A matte typically protects an area of the background plate so that a new element can be added to the scene. You never see the matte. You see the composited result that contains multiple layers of imagery as one. In the work of O'Neil and Casady the detritus, often a matte, has a new role, a new identity. The material is brought forward into plain view for the audience to see and experience, whereas before the material was made to be invisible. Re-presented material can act in the same way as Edgar Allen Poe's purloined letter, sitting there in plain view while remaining difficult to identify, if at all.

Pat O'Neil creates abstract or composite films using, as he describes, "the camera as a sort of gathering device to provide elements for manipulation of re-photography." To manipulate the imagery he uses rotoscope mattes to protect part of an image in order to replace it with another. The mattes he has used are often the by-products from the VFX process used in the spirit of collage. You might say that the imagery he creates arrives through a process of redigestion and combined to the point at which the content appears in the absence of the original. Another example of redigested material can be seen in Chris Casady's animations. He has used discarded rotoscoped mattes created while working on various film productions and incorporated them into his symphonic animations as sensual shapes that dance across the frame and dissolve into additional original animations.

It was the animation and special effects film artist, Chris Casady, who first introduced me to the practice of dumpster diving. Late at night, when there was a break in the workload while we produced the special effects for a film called Star Wars, we would dive into the trash bin and pull out reels of film of the failed elements used to create composites such as the X-wing or the Y-wing that flew in battle across Dark Star. This was our first feature film. We had no idea the film would become the touchstone for special effects films that it is recognized to be today. We salvaged covermattes, separations, and holdout mattes that had been discarded, deemed to have no value. The impulse to rescue these discarded elements was motivated by what we saw - these incredible sequences of black and white images that had been extracted from the original bluescreen shots of models.

It was a less regulated work environment than today. I recall no contract of ownership and secrecy that I had to sign. I was a neophyte to the discipline of filmmaking and stood in awe of the whole process, which included the new technology of motion control, a computer assisted camera rig. My experience as an artist was purely traditional. I was a painter and sculptor. I didn't even own a camera when I managed to convince the optical supervisor, Rob Blalack, whom I worked for as a production assistant, to select me for training in the art of optical compositing instead of the film editor. I saw him interview. So when Chris and I found these discarded elements in the dumpster, I eagerly took them as samples of what I had come to know, to study them further and as concrete evidence of my experience. We had no intention to reproduce the images. We were not so naive then to think that we would not be crossing a line if we used these images. We thought they were "cool" and salvaged them. I still have some of this film, but it would be a clear infringement of copyright if I were to use these images without permission in any way other than as specified under the "Fair Use" act of the Copyright Law. Their recognizable iconography is burned into the collective consciousness of science fiction enthusiasts. The "Fair Use" exemption would allow me to use them for such purposes as education, commentary, parody, news reporting and research. The dumpster diving I enjoyed with Chris alerted me not only to the treasure of enormous waste in the filmmaking process and its potential as a resource, but it also brought me to the boundaries of copyright issues.

It is the unrecognizable feature of the mattes and other detritus used by Pat O'Neil and Chris Casady that protects O'Neil and Casady from being sued for copyright infringement. If the matte used had indicated a silhouetted Mickey Mouse, they would soon have a Disney lawyer suing them for copyright infringement.

Disney Corporation is a defining force in the interpretation of copyright law. They aggressively protect the commercial value of all their products whether or not they own the copyright. An example of the aggressive position Disney Corporation has taken is one that involves a musical production of Beauty and the Beast. Dick Stover, a musical director in California, mounted a production of Beauty and the Beast. He received a call from a Disney lawyer informing him that he must pay a licensing fee to Disney if he wished to mount the show. Stover's reply to the lawyer was, "No, I will not." They went back and forth in this argument until the lawyer finally conceded. Stover knew that Beauty and the Beast was public domain property and that Disney did not hold the copyright. I remind you at this point that many of the tales that Disney built itself upon are public domain property. They prefer you to believe they are the original creators and owners of such stories they have animated and brought to film. It is with the might of a powerful corporation who knows how to intimidate that they prosper.

What Disney does have is a claim of copyright ownership of the Mickey Mouse character. Be prepared to be slapped with a suit from Disney, even in "Fair Use" situations, if you create a representation of Mickey Mouse. "Fair Use" is the most contentious area of interpretation. Interpretation and precedence define the map that guides the decisions in copyright cases. Mickey Mouse is one of Disney's most valuable properties. The Disney Empire sees itself as Mickey Mouse. In a copyright infringement case Disney has stated, "the Mickey Mouse character identifies and symbolizes Disney itself." (Walt Disney Company v. Transatlantic Video Inc., U.S.D.C., Central District of Ca., Case No. CV-91-0429 (1991)) They will go to every length imaginable to protect their copyright ownership and commercial stake in Mickey Mouse, in their identity.

The icon Mickey Mouse is nearly 75 years old. In the year 2003 Mickey Mouse's qualification as a senior citizen would have automatically made him a member of the public domain club--if not for the Sonny Bono Copyright Extension Act. On October 7, 1998, President Clinton, urged on by a Disney Corporation mindful that their Mickey Mouse copyright was about to expire, signed legislation extending copyright ownership for another 20 years. The Disney Corporation and their entertainment friends were generous election fund contributors to the amount of over $6.5 million.

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We see the copyright crusade is not limited to the digital world, but encompasses the entire entertainment industry. In concert with the interests of corporation ownership, the U.S. Government has placed greater importance on the economic interest of the entertainment industry than on public domain. But nonetheless, a complaint in regards to the Sonny Bono Extension Act was accepted from Robin Hood, an American law professor, and Stanford lawyer Lawrence Lessig (5), who argued "that the excessive prolongation prevents the creation of new works and inhibits freedom of speech .."

Authorship and copyright laws are there to protect every perceivable intellectual expression. Otherwise, anyone could claim to have had an idea first. The original goal of copyright was to stimulate creative output by protecting the ownership of an author's material so they may profit from it during their lifetime. Public domain was seen as a necessary part of copyright for further creative and economic growth. The current trend though is to place the controls for growth in the hands of the corporation by limiting the flow of material into the public domain. This jeopardizes growth. The explosive growth and creative expression that has occurred because of the Internet is evidence of what happens when there are greater freedoms.

Ideas, processes, methods, and systems described in copyright work are not copyrightable. It is their physical expression that is automatically protected by copyright.

So, where does the work I am doing with the texture map sit in relation to copyright law? Similar to the elements used by O'Neil and Casady, the texture map is unrecognizable for what it was originally intended. It exists as a discarded fragment that has been salvaged and manipulated using digital technology. Its presence is invisible to the eyes of the corporation. It is a "catch-me-if-you-can" situation where, as long as I do not make a link with the film and character for which the texture map was produced, it would be very difficult to reconstruct the original. But is it ethical of me to have taken these images from the digital trash heap for re-appropriation without the permission of the company, my employer? Does the end justify the means? I don't have a clear answer to this question. I will claim the position of an evolutionary anarchist in the name of creative expression and I will continue to scavenge and salvage invisible images from oblivion so they may be reused and recycled. I'm letting them out of their virtual digital cage so they may be used in another creative chain.

This work is a fragment that has dislodged itself from its entirety. You cannot copyright a fragment. There are cases within the music industry that serve as good examples of copyright law and how it has interpreted and defined a fragment. For example, the Beastie Boys found themselves in litigation with James Newton, a jazz musician and composer (6). They sampled Newton's work in their song Pass the Mic. Newton is both the author and performer of the sample used. The Beastie Boys had cleared the rights for the recording, but not the composition because they had used only 3 notes. They had also distorted the notes to the point where they no longer resemble the original 3 notes. It was decided that James Newton does not have exclusive rights to the series of notes and he lost the case. A scenario to explain why the Beastie Boys won the case is this: A person writes a book and another person records a reading of it that is sold to the public. When you sample a small fragment of the tape, a section where the voice says "once there was," the sound recording related to the person's voice might need to be cleared. You do not need to get authorization from the author of the book to you use the words "once there was." The Beastie Boys use of 3 notes did not constitute copyright infringement. So, if we consider one of the texture fragments I have extracted out of the digital dumpster to be a fragment as miniscule as 3 notes, I may slip through the copyright infringement net.

I cannot leave this subject until I have addressed the issue of whether or not the work I am presenting is derivative work. To support a copyright for a new work, "the original aspects of a derivative work must be more than trivial. The scope of protection afforded a derivative work must reflect the degree to which it relies on preexisting material and must not in any way affect the scope of any copyright protection in that preexisting material. "To what extent have I taken a fragment that is, for the sake of argument, equivalent to 3 notes and made an original work?

My piece, Pinch, started as a small fragment of a texture map. The entire skin of a character is made up of texture patches that collectively make up the map. A simplistic analogy would be if the United States is the map, the states are the patches. The texture patch itself is a fragment of the texture map. The fragment which became Pinch was cropped out of a patch that was at least twenty times larger. A searching eye led me to that particular spot in the texture painting. I saw it, as an apparition embedded in the vague folds of colors of the larger texture patch. I repainted the cropped fragment until the shapes that lured me there were lifted into their present composition. I shaped a new form out of an abstraction, out of a formless trace. A close reading of the texture patch has shattered the original map's distinctions. The original is absent. A new work has evolved.

Waste is a product of our evolution. Complex living organisms take advantage of whatever form their nutrition comes in: while simple micro-organisms subsist on raw basic biochemical ingredients. Life has evolved from simple organisms to complex ones that subsist on other complex organisms--they don't need to obtain their nutrition from scratch.

The evolution of a new work of art takes place within the digestion of its environment. Artists who "survive" in their environment are obliged to utilize whatever materials they deem useful to their creative statements. In our legal society, of course, one is not permitted to "prey" on other living works by simply applying one's name to it. But it doesn't follow that the use of pre-processed materials, which have been discarded, is predatory--it's more like scavenging. If they can't feast on the complex pre-processed pieces they find in their environment, it would severely limit the complexity of what they have to say.

To give credit where credit is due, I must acknowledge that I am not the sole author of this work. This body of artwork has been produced in collaboration with intelligent technology. The merger of my talents to render realistic surfaces and the computer's intelligent ability to extract my render from the 3-D character and generate a 2-D element that is an abstract fragment of the original painting places us in a collaborative exchange. The machine species transports us into new territory, where the outcome is unpredictable, where the original is transformed and mutated into an unrecognizable state, losing its original form.

I see "digitritus" as utilitarian objects that can be re-presented, reconsidered and recontextualized to arrive at a meaning that was not in the field of vision or thought when originally created. Texture maps lie in the space between the virtual body, the absent body, and the formless. While you may not be able to trace their origins, they exist as a trace. The trace destabilizes categories of copyright ownership. "Derrida's deconstructive trace is founded within a moment of erasure whose operation supersedes the stable notions of absence and presence" (7). the trace suggests the fragility of order and balance in structures by placing presence under erasure. Meaning and form melt away and allow for other possible interpretations in the texture map.

Perhaps more realistically, more honestly, this body of work falls under the tradition of objects trouves. The artist uses mundane, devalued detritus encountered in daily life. The entertainment industry demands of its artists that they dedicate most of their waking hours engaged in work on the Company's products. Fifty or more hours a week in a dark cube in front of a computer monitor is a common work condition in the film industry. Where will the artist trouve les objects but in the daily, mundane environment that is the texture of life. The art of objets trouves was born in the findings of the flaneur, who, strolling the city streets, observes and absorbs the details of the banal and the mundane. The Los Angeles landscape denies the traditional activity of the flaneur. The contemporary flaneur no longer strolls the streets aimlessly, but instead takes a virtual stroll on the paths of the digital network. Whether on a city street or a virtual avenue, the artist is inspired by that which is in her field of vision, along her daily path.

NOTES:

(1) Technology refers to the technology based animal forms created to represent both real and unreal bodies.

(2) Polygons and nurbs are types of geometry used to build a model. Polygons are shapes defined by vertices that create three-, four- or n-sided shapes. Polygons are generally used for geometric shapes. Nurbs are used to build organic shapes because their geometry is derived from curves. The UV coordinate system defines the topology of the surface, whereas the XYZ coordinate system defines the object's position in 3D space.

(3) David James, "Interview with Pat O'Nieil," Millenium Film Journal, no.30/31 (Fall 1997).

(4) Mickey Mouse and Copyright, Mercedes Bunz, www.ars.acustica.com

(5) Lawrence Lessig, The Future of Ideas: the Fate of the Commons in a Connected World, Vintage Books, 2002.

(6) Tempo Music vs. Famous Music, Comments.

(7) Uros Cyoro. "The Present Body, the Absent Body, and the Formless," Art Journal, vol. 61, no.4, p. 56 (Winter 2002)