Wikipedia Art dispute pits artists against Wikimedia Foundation

Two artists attempted to create a performance art piece by establishing a Wikipedia entry entitled "Wikipedia Art," which could then be freely edited and "transformed" by anyone choosing to do so. The page lasted a mere 15 hours before being summarily deleted by Wikipedia editors and admins. Now, the pair's archive and continuing discussion of the project is being threatened by the Wikimedia Foundation's legal counsel, which has effectively threatened to pursue legal action against the artists for trademark infringement.

"Wikipedia Art is an art intervention which explicitly invites performative utterances in order to change the work itself," reads the archive of the original Wikipedia post made by artists Scott Kildall and Nathaniel Stern. "The ongoing composition and performance of Wikipedia Art is intended to point to the "invisible authors and authorities" of Wikipedia, and by extension the Internet, as well as the site's extant criticisms: bias, consensus over credentials, reliability and accuracy, vandalism, etc."

The pair meant for the article to be a functional critique of Wikipedia as an information source, using Wikipedia as the "venue" and its users as participants in the "performance." Whatever your opinions are about what constitutes art and what doesn't, it didn't meet Wikipedia's guidelines for an encyclopedic article, and ultimately the editors decided it should be deleted.

Once the article had been marked "AfD"—or Article for Deletion—there was substantial discussion on Wikipedia, which continued on various blogs after the deletion took place. That is precisely what Kildall and Stern were hoping to achieve, so the duo created wikipediaart.org to track the discussion and archive the various forms the page took in the 15 hours it was live on Wikipedia.

The site went live February 16 but, on March 23, Kildall recieved a letter from Douglas Isenberg, counsel for Wikimedia Foundation. Isenberg wrote that he had been asked to investigate whether the use of the word "wikipedia" violated a number of statutes, including the Anticybersquatting Consumer Protection Act, the Trademark Act, the Federal Trademark Dilution Act, as well as "state and common law trademark and unfair competition statutes." Isenberg's letter requested that the wikipediaart.org domain be transferred to Wikimedia, but noted the group had no intent "to interfere in any way with your right to create and maintain an editable art project under another name."

Kildall and Stern's Wikipedia Art is in the form of Wikipedia article. How meta.

Kildall and Stern sought the advice of counsel and James Martin sent a reply to Isenberg on the pair's behalf, noting that the wikimediaart.org site did not claim to be connected with or endorsed by Wikipedia in any way. He also noted that the site was not being used for any commercial purpose whatsoever. "We are disappointed by Wikimedia's efforts to suppress free speech by threatening legal action," wrote Martin. "We have concluded that my client has not violated any of Wikimedia's legal rights."

Isenberg responded by with what essentially reads as a threat to take the case to the Uniform Domain Name Dispute Resolution Policy of the World Intellectual Property Organization. Paul Levy of the Public Citizen Litigation Group stepped in, on a pro bono basis, on behalf of the artists. 

Levy, who has worked to defend fair use of trademark names in the past, strongly opposed Wikimedia Foundation's attempt to skirt US law—which precedent suggests would protect the site on free speech and fair use grounds—by filing a UDRP claim with WIPO. "Even if you end up deciding... to file a UDRP claim," Levy wrote in an e-mail to Wikimedia counsel Mike Godwin, "I have indicated that we will seek a declaratory judgment of non-infringement because we are not willing to allow this dispute to be resolved by reference to private law instead of the law of the United States that governs both your client and mine."

Mike Godwin, lead counsel for the Wikimedia Foundation, insists that no threat was made to pursue legal action, and that Wikimedia Foundation simply wanted the artists to post a disclaimer. "The possibility of a disclaimer is inherent in the suggestion that we resolve our differences amicably," Goodwin told Ars via e-mail. "A disclaimer is one way of doing this." However, none of Isenberg's correspondence mentions a disclaimer as a possible resolution.