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One of the keys here is understanding that much of the time, intellectual property in the art world is enforced the old-fashioned way: through the arcane systems of distribution and attribution created by the art world itself, independent of the legal system. Part of what protects Sol LeWitt’s work is the fact that the instructions are only part of the “machine that creates the art” — there are also certain installers who know the “correct” way to interpret the instructions. Another part of the equation is the idea of authenticity that separates a “real” LeWitt or a “real” Warhol from the fakes. No self-respecting art institution or collector wants to own or display a fake work of art — even if it is indistinguishable from the real one. Thus, as these artists worked to remove personal identity from the equation, several strategies were devised enforce the notion of authorship in their work — certificates of ownership, authentication boards, etc.

Even while LeWitt was issuing legal certificates of ownership, he insisted that “anyone with a pencil, a hand, and clear verbal directions” could create legitimate versions of his pieces. In this sense, he could be seen as a forerunner of the free culture movement and Creative Commons. Crucially, however, his approach was to make the idea (that is, the non-copyrightable aspect of the work) the essential aspect; whereas, Creative Commons created a set of licenses that intentionally strip away various restrictions enacted by copyright law.

We should keep in mind, however, that LeWitt’s concerns seem to center around the integrity of the artwork, more than ideals of freedom or a gift economy. He later declared that this openness to unrestrained reproduction could corrupt his work, back-pedaling on his earlier idealism. This tension between freedom of use and integrity of work is essential to any understanding of intellectual property; as we refine our laws, and license our work, we should aim to strike a balance, rather than push an ideology.

This Text was first released on Scattered Work, a blog authored by Ben Judson. Ben lives in San Antonio, Texas, where he is a freelance writer, web designer, and occasional artist. He was a founding member of the group art blog Emvergeoning, and writes for print magazines such as Art Lies and the San Antonio Current. His portfolio is at Sahara Gray.

The name Scattered Work comes from the ninth pattern in Christopher Alexander’s A Pattern Language: “The artificial separation of houses and work creates intolerable rifts in people’s inner lives.”