Are video games art?

SimCity 2000 (1984) designed by Will Wright and Fred Haslam

The New York based Museum of Modern Art (MoMA) has recently acquired a selection of 14 video games including Pac-Man, Tetris, SimCity2000 and Portal. These video games will form a new category of artworks held in the MoMA collection.

The MoMA press release announcing the acquisition poses the question ‘are video games art?’ and immediately answers it with a very self assured ‘they sure are’. However, it goes on to say, ‘but [video games] are also design, and a design approach is what we chose for this new foray into this universe’. So whilst MoMA considers video games to be art, it is classifying them under the broader heading of ‘interaction design’.

How do you display a video game in an art gallery?

There are a number of commentators who have suggested that MoMA is going to turn into an arcade in order to display these new acquisitions. Curating the games is considerably more challenging than that. For example, how do you display a game which is designed to be played without risking destroying it through repeated game play? Should you have consoles available for MoMA videos to play the games? Should they be the original consoles/computers? Does it matter?

MoMA has sought advice on this and many other legal, preservation and design matters. MoMA concluded that they have to obtain copies in the game’s original software format and the original hardware ‘wherever possible’. They also sought to acquire the original source code to enable translation in the future if the original technology becomes obsolete (hence, what I imagine is, a fairly hefty price tag for some of these games).

In terms of display, if the game is short enough (e.g. Passage) the game could be made playable in its entirety in the gallery. They will put on interactive demonstrations for longer games and even create guided tours of the alternative worlds in games like Dwarf Fortress. As MoMA puts it, the acquisition will enable the museum to ‘study, preserve, and exhibit video games as part of its Architecture and Design collection.’ 

How were the games chosen? 

MoMA explains that it followed the same approach to the acquisition of the games that it takes with other items in the collection i.e. ‘a combination of historical and cultural relevance, aesthetic expression, functional and structural soundness, innovative approaches to technology and behavior, and a successful synthesis of materials and techniques in achieving the goal set by the initial program.’ Because of this artistic focus, the MoMA selection doesn’t include some games which might have seemed logical choices from a historical significance perspective. Arguably if MoMA hasn't selected a game for inclusion it is less 'artistic' but there may be any number of factors as to why games have not been included so if a favourite game isn't included, don't get too upset!

Tetris, 1984.  Designed by Alexey Pajitnov

What does the law say?

There have been relatively few cases over the years to consider what form of rights video games are protected by and how close you have to be for infringement. However, it is relatively settled law that video games fall into the UK definition of a copyright work as a series of graphic (or artistic) works and as a literary work in terms of the underlying source code. Games can also incorporate short films, usually include a soundtrack (another right), and in some circumstances, may arguably be films in their own right.

Nova v Mazooma is still the main UK case – two similar pool games were found not to infringe as the copying was not of a ‘substantial part’ of the original game. This case analysed the game as a series of ‘graphic’ or artistic works.


For a full run through of all the recent cases and a comprehensive review of gaming law in general, the reader should look no further than Jas Purewal’s excellent Gamerlaw blog.

Across the pond, the argument that video games could be art was boosted in the US last year when the Supreme Court ruled they were like other works of art and their right to free speech should be protected under the First Amendment. See here for the NY Times' analysis. Thus, from a legal perspective at least, it is fairly settled that video games can be works of art.

What do the critics say?

Not all critics agree with MoMA’s assertion that video games can be works of art. The Guardian’s Jonathan Jones has been particularly critical – his article is a fairly provocative read. There is a certain amount of sneering about putting Tetris in the same galleries as works by Pollock and Picasso but the argument that they cannot be works of art because they require human interaction to be appreciated doesn’t seem to be particularly powerful – the definition of art is changing all the time. Most modern installations require at least minimal human interaction and a limited view of art as something that you merely gaze on has become outdated.

Should video games be treated as art? Your comments are always appreciated.

There is more to come…

These 14 games are the ‘seedbed for an initial wish list of about 40 to be acquired in the near future’. Games on the wish list include Spacewar, Pong, Snake (the original not the Nokia phone version), Donkey Kong, Legend of Zelda and Super Mario Bros. (making Shigeru Miyamoto the most sought after artist/game designer). The first 14 video games will be installed in MoMA’s Philip Johnson Galleries from March 2013.

You can view The Guardian’s slide show of some of the games here.

You can read more about the acquisition in The Independent here.

You can view YouTube gameplay for each of the games via The Week here.

Taking Art law to the MAXXI

Sometimes the legal issues got a little bit blurry

Last Thursday and Friday there was a fantastic international art law conference organised by Massimo Sterpi on behalf of the International Bar Association at the MAXXI art gallery in Rome. There was a huge range of speakers from artists to curators, academics to lawyers.

The speakers gave a fascinating insight into the world of galleries and museums, private collections and provoked considerable debate on some of the issues facing the art world today. The sorts of issues covered included

(1) how you reach a legal definition of art – a particular issue when trying to justify a hefty price tag for what might, to the untrained eye, look like a pile of bricks or a bit of twisted neon light,

(2) how new forms of art such as holograms can fall within old legal definitions,

(3) ownership of digital art, particularly when it includes user generated content or consist of collections of other works gathered from across the internet – pinterest was a particular discussion point,

(4) broader questions of ownership of art, particularly large scale public or performance art primarily in the context of the Burning Man project,

(5) appropriationism including the case law (hello Jeff Koons, Cariou v Prince et al),

(6) the different treatment of art in different legal systems, particularly the relatively open approach of copyright compared to the prescriptive and literal approach of tax laws,

(7) the dangers that museums and galleries face from last minute lawsuits to demonstrations and public being put in danger (fire, falling masonry, falling over in darkness… the list of potential danger is seemingly endless),

(8) controversies surrounding certain types of art, particularly bio art (from glowing green bunnies to pickled human bodies).

The wonderful Zaha Hadid creation that is the MAXXI

Unsurprisingly, given the number of lawyers in the room, there was a lot of talk about copyright and the inherent problems in applying an old system to a new world where digital reproduction is quick and common and appropriationism has become an accepted and almost mainstream art form. 

Suggested solutions included a form of compulsory licensing for copyright works (similar to the approach taken in patent law), a taxation approach (i.e. you have to pay money if your use of a work makes you any money – probably not the favoured approach of the content industries), and a shorter term of copyright protection.

 I will be blogging in more detail on the issues raised in due course but if any of the above are of particular interest please let me know in the comments section below and I will try to cover them first...

Portrait of a lobster: a lawyer looks at the art-style-design divide

Some readers of Art & Artifice will be readers of the jiplp weblog, but most will not. Today's jiplp features "Art, Style, Design" -- a powerful piece by veteran Italian intellectual property scholar and practitioner Mario Franzosi on the inadequacy of European design laws. In the middle of this analysus he seeks to distinguish the three concepts to which the title alludes in the following manner:

"2.1 Art results from the work of artists, those people who, with constant and enduring passion, communicate in understandable form their feelings and thoughts -- feelings and thoughts that are universal: those of the human race. 

Art expresses those permanent ideas like Beauty, Love, Courage, Misery, Heroism, Passion, Faith, which are everlasting principles and sentiments. The message is not immediately evident; especially for modern art, it has to be detected or interpreted; when detected, it makes an everlasting impression. 

One of the 284 lobster paintings
currently available from
Fine Art America -- none of which
look much like lawyers 

Works of Art are in Museums, and also in the lobbies of the most prestigious law firms. Some months ago I was in the office of a well-known, high-profile IP lawyer and I saw in the lobby a most catching picture. In this picture I clearly recognized that lawyer (looking, perhaps, a little younger than his actual years), working tirelessly for a case. The picture expressed clearly the intelligence, dedication, tension and ability of the professional. It seemed that this IP star was considering only the interest of his client, and nothing leaked from the external world. I expressed my admiration to the secretary. And she said (I told you that the meaning of the work of art is not immediately evident !): “Yes, Sir, true. However, it is a fact that the painting depicts a lobster, cooked with onions and potatoes”. I will not tell whether it was lobster or potato or onion that brought me to the identification with our famous friend.  

2.2. Style is typical of stylists, those people who express their style, their personality in their creations. A work of style is recognizable and easily attributed to the stylist. It is the signature of the creator, like a real signature made with a pen (stylus, in Latin). It must show the personality of the creator; if not, it is a creation with no style. And the style has to be consistent: if Armani changes style and designs in the style of Dolce & Gabbana, the public will say that he has lost style, and deserves no consideration and appreciation. The same if Dolce & Gabbana designs in the Armani’s style: nobody would accept it. An exchange of image is not allowed, since it would be a loss or style, no matter whether the new style is good or bad.

2.3. Design is quite a different animal. Designers design common objects, those kind of items that you use every day, in a manner that it is (or should be) appropriate for you and the object. They design common coffee-pots, or typing machines or refrigerators, which make good coffee, keep your food fresh, type letters easily. The personality of designers does not count; it is the utility and elegance of the object that matters. When in a shop window you see a coffee-pot that is a work of design, you look at it with interest, enter the shop and buy it (even if it costs a little more than expected, but not so terribly more), because you have a feeling that it is nice and makes a good coffee. You put the old coffee-pot aside, and think of using the old only if the new breaks out. But the new does not break, if it is good design, so that the old remains disconsolate on the shelf, until it goes, even more disconsolate, in the basement. 

A work of design is a work of a designer, working with other functions in the company. If the company could buy aluminum at a bargain, the coffeepot is made of aluminum; if not, is made of iron. If the company wants to make use of a number of filters that lay in the warehouse and nobody finds a proper use, the coffeepot employs said filters. The product is made with what is easily available, provided is appropriate (fit and match, if I may use the European terminology). The product is proper, but not fanciful; the public does not know, and does not recognize, the designer. The public buys coffeepots, and not names. 

Of course there are contact, or conflicts, between Art, Style and Design. For instance, if you enter a museum of fine art and see a beautiful chair, you may not know if it is a work of Art or Design. But there are ways to find out. For instance, if you sit on the chair and you feel comfortable, it is a work of Design. If you sit and the alarm sounds, the guardian comes with a broom and scolds you, it is a work of Art. The amount of scolding is the amount of creativity".

While the definitions are somewhat tongue-in-cheek, the message behind them, and its implications for the protection of applied and functional art, are immense. Readers are invited to share their comments and reflections on the good professor's thoughts.