December 30, 1999
ADVERTISING
Art and Commerce Collide Online
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Advertising: Addenda
By MATTHEW MIRAPAUL
OW valuable is an "s" on the
Internet?
Two combatants, separated
in cyberspace by that single letter,
are about to find out. One is a fiercely
independent World Wide Web ensemble looking to use the new medium to
stir up the status quo and reshape the
boundaries of artistic expression.
The other is an e-commerce upstart
seeking to build a business and establish its brand while reshaping the
marketplace.
Already, a legal dispute between
the two has forced the arts group to
give up its Web address, even though
it was online a year before the business venture was formed. And as
word of its situation has spread, supporters have mounted a vigorous Internet-based protest claiming that
commercial considerations are stifling creative expression on the Internet.
Now business is trying to find a
way to coexist peacefully with art.
Yesterday, eToys Inc., the Web's
leading toy retailer, said it had offered to drop its trademark-infringement lawsuit against etoy, a European group of online conceptual artists. Etoys, which has already won a
court order evicting the artists from
their home at www.etoy.com, also
said it was willing to let the group
resume using that address.
But the company said it was asking the group to relocate graphic
images and language to other Internet sites, where children and parents
shopping for Pokémon cards and
Harry Potter books are less likely to
stumble upon them by mistake.
A lawyer for etoy said that the
group would not agree to limit the
content on its Web site.
"These are artists, and this is just
not acceptable to them," Chris
Truax, etoy's lawyer, said in a telephone interview from San Diego.
"Etoy cannot give eToys veto power
over the content on its site."
Last month etoy was forced to stop
using www.etoy.com, its Web address since 1995. EToys was not
founded until the following year, and
put up its Web site, www.etoys.com,
in 1997. Unlike etoy, though, eToys
holds a United States trademark for
its name.
Ken Ross, a spokesman for the
Santa Monica, Calif., company, said:
"We are initiating an end to the legal
actions against etoy. The reason is
simple: over the last several weeks,
we've received lots and lots of communications that urged us to find a
way to coexist with etoy."
Mr. Ross added that eToys was
asking etoy to find a way to move its
"more graphic pages" -- one recently incorporated a picture of the
bombed federal building in Oklahoma City, with a satirical caption --
but that it was not a condition for
putting an end to the lawsuit. "It is
only a request," he said. (Mr. Truax
said etoy was still studying the company's offer.)
EToys had sued etoy after hearing
from customers who went to the art
site by mistake, including some who
complained about its profane language. A Los Angeles Superior Court
judge issued a preliminary injunction against etoy on Nov. 29, threatening the artists with fines of as
much as $10,000 a day unless they
stopped using the www.etoy.com address.
The group, which mimics corporate behavior, went into Internet exile at a numeric address (http://
146.228.204.72:8080/). But etoy is well
known in Internet art circles, and as
word of its situation spread, defenders started protest sites and began
blanketing the Internet with e-mail
messages. The case has become a
cause célèbre among those who resent the growing influence of commercial interests on the Internet because they fear it will limit artistic
expression.
Mr. Ross said the offer from eToys
was prompted because "we received
a lot of heartfelt, well-reasoned e-mails," adding, "It was never our
intention to silence artistic expression."
But etoy's supporters had reacted
with alarm to the shutdown of the
site. Supporters who believe the artists were being muzzled put up several sites urging visitors to boycott
eToys and send disapproving e-mail
messages to the company's executives. A few parody sites have also
appeared.
An etoy spokesman who gave his
name as "zai" (the group's dozen or
so members do not divulge their real
names) said the domain name and
the Web site that accompanied it
were in themselves the group's and
that giving up the domain name "will
be the end of this art piece." As for
the origins of the group's name, it
was one of several choices generated
by a computer program, he said, and
was latched onto because it sounded
like something electronic, playfully
ironic, and possibly Japanese.
RTMark, another group of anonymous online provocateurs, has successfully tweaked the campaigns of
Gov. George W. Bush and Mayor
Rudolph W. Giuliani this year by
creating parody sites with addresses
confusingly similar to those of the
campaigns' official sites. The group
has been selected to exhibit in the
Whitney Museum's biennial survey
of American art next year.
Since etoy was formed before
eToys existed, no one could accuse
the artists of pulling a similar prank
or of being cybersquatters -- people
who register company and product
names and then demand payment
for them. But if the two parties cannot reach an agreement, it will be up
to the courts to decide if the dispute
is an example of reverse domain-name hijacking, in which someone
who covets a domain name but has
no legal right to it tries to coerce the
owner into surrendering it. Etoy is
appealing the preliminary injunction.
Lauren Cooks Levitan, an analyst
at Robertson, Stephens who follows
eToys, said that the retailer was not
likely to experience anything more
than limited damage from potential
customers who visit the arts site in
error, but that bad publicity from the
lawsuit might have a different effect.
Before filing suit, eToys officials
indicated they were willing to buy
etoy, and the most recent offer was
somewhere over $400,000, in a mix of
cash and eToys stock. If accepted,
the price would probably set a record
for a work of Internet art -- and for
the letter "s."
