The Permissibility of Appropriation

Whether or not artists should be permitted to appropriate (take and use) other peoples’ imagery in their creation of their art works relies very much on the context of the appropriation. For example, it is (traditionally) a given that the appropriated image is to be recognised by the viewer  – the artist intends for the viewer to bring their perception and meaning of the original work to their appropriated piece for whatever reason the artist intends (usually to make a statement, often about the piece in question). However, it is possible to argue that appropriated works that do not do this entirely are still acceptable in our post-modern (although it is almost definite that all appropriated works intend for the original to be recognised). Perceptions of appropriation range wildly – some think it is not permissible, while others think it is in some contexts. Appropriation and fair use is an ongoing issue in the law courts, and is particularly relevant today, with the rise of copyright issues and the freedom of the internet.

In terms of the law, fair use of appropriated imagery is determined in relation to four factors – the purpose and character of the use, the nature of the copyrighted original work, the amount and sustainability of the portion taken, and the effect of the use on any potential market[1].
The work must be transformative rather than derivative – that is, it must add new expression or meaning.
Works that appropriate from works of fact rather than fiction are more likely to be declared fair usage, as the dissemination of facts and information benefits the public.
For the most part, less is more – works that appropriate less are more likely to be declared fair usage by a court of law. The exception to this is parodies, as “the heart is also what most readily conjures up the [original] for parody, and it is the heart at which parody takes aim.”[2]
Finally, if a piece is seen to be intruding on the original’s place in the market, it is unlikely to be granted fair use (particularly if the work deprives the copyright owner of income).
For example, artist Tom Forsythe was sued by Mattel Inc. for his Food Chain Barbie series, in which he portrayed Mattel’s Barbie doll “juxtaposed with various kitchen appliances”[3] in absurd and occasionally sexualised positions. Mattel argued, naturally, that the works infringed on trademarks and copyrights. In return, Forsythe argued that his series criticised the objectification of women and the beauty myth, both concepts often associated with the doll. Defending his claim, Forsythe stated “Barbie is the most enduring of those products that feed on the insecurities of our beauty and perfection-obsessed consumer culture”[4] and that he “created the Food Chain Barbie series as a seriously funny stab at mindless consumerism, the impossible beauty myth and the advertising that brings it all into our lives”[5]. In the end, the 9th Circuit Court decided in favour of Forsythe, finding his work transformative, without likelihood of confusion between the work and the original product, and a parody, thus non-commercial[6].
Jeff Koons, artist (in this case, sculptor) was taken to court by Art Rogers, photographer, for his use of Rogers’ photograph Puppies in his sculpture String of Puppies.  Koons, who had seen Rogers’ image in a postcard, used it as a basis for a sculpture for an art show revolving around the theme of the banality of everyday items. Koons removed the copyright label from the postcard and “gave it to his assistants with instructions on how to model the sculpture”[7], requesting that as much detail as possible be copied, and that the puppies be made blue, noses exaggerated, and flowers be added to the hair of the man and woman. Koons proceeded to sell three sculptures for a total of $367,000, and Rogers sued for copyright infringement. Koons admitted copying the image intentionally, but claimed it fell under fair usage by parody. The court did not agree, finding substantial similarity – a defining standard developed and used by US courts to determine copyright infringement, and defining the sculpture to be a copy. As for the parody claim, it was rejected by the court, on the grounds that Koons could have constructed his parody without copying the image – it was a parody of the theme or style of image, rather than the image itself.

One use of appropriation is to enable the artist to readily comment or criticise on the original image, the context it was made in, its original message, or some other aspect surrounding the image. The comment or criticism is often subversive, aligning with the aesthetic theory that art has a social responsibility, and should constantly challenge aspects of society.
One such artist who appropriated for this reason was Andy Warhol, of the Pop art era. Warhol was fascinated with commercial, consumer, and celebrity culture, and regularly appropriated from related sources. However, it was often unsure what perspective he held on the images he appropriated – at times it seemed as if he were celebrating celebrity culture (definitely a possibility – Warhol thoroughly enjoyed the concept of fame), at others he seemed as if he may have been heavily criticising the mass media and consumerism. Take, for example, Warhol’s Brillo Soap Pads Box, in which Warhol directly copied the design for the shipping boxes for Brillo soap pads and stacked them in the gallery. Warhol later stated he “wanted something ordinary”. It is clear that the style in which the boxes were designed – clean, precise, and manufactured – was a response to the somewhat messier and more emotionally-driven abstract expressionists (a common motif running through pop art; many pop artists saw abstract expressionism as too high-brow, introverted, and self-obsessive, and created art that everybody could enjoy to combat it – interestingly, the designer of the Brillo box, James Harvey, was an abstract expressionist – Warhol knew him, but not of his Brillo connection[8]), but it is slightly less clear whether or not Warhol was celebrating or condemning commercialism and consumerism. Dr. Christopher Alexander poses the question: “Were these celebrations of American consumption, comments on the art market, condemnations of the “culture industry” and the growing commericalization of American culture? Were they sincere or satiric?”[9] In either case, it matters not in reference to appropriation, as both stances are commenting on the aspect of society the original image comes from[10].
Another example of Warhol’s appropriation is his Marilyn series. In this series, Warhol mass-produced images of Marilyn Monroe via the silkscreen method, resulting in vibrant images that were each slightly unique. It seems more likely this time that Warhol was celebrating celebrity culture, or at least Monroe, although his approach was rather morbid: “When Marilyn happened to die that month, I got the idea to make screens of her beautiful face the first Marilyns.”
Barbara Kruger is another artist who utilises appropriation to comment on aspects of the original image. A feminist artist, Kruger appropriated images in the 70s and 80s from magazines and the like in order to comment on aspects of society such as the portrayal of women, sexism, and the imbalance of power.
Kruger’s Untitled (Your Body is a Battleground) (designed for the 1989 march on Washington in support of women’s rights and the abortion-rights movement[11]) features an appropriated image of a model silk-screened onto vinyl and edited, split down the middle into positive and negative. The split critiques the objectified standard of symmetry in beauty, as well as being a reference to the “battleground” spoken of in the text. The image itself would have less effect if it were to not feature the appropriated photograph of the model, as it is an example of the objectified standard critiqued as well as a weapon against the accurate portrayal of women and their equality, to continue Kruger’s metaphor.
Kruger continues to work with appropriation, creating Untitled (Pro-life for the unborn/Pro-death for the born) in 2000. This piece features an image of the US President at the time, George Bush, notorious for the instigation of the war on terror in the early 2000s. The artwork would quite literally lose the vast majority of its meaning if the image of George Bush was not used, as it would lose all reference to its context. Without the image, it is clear that Kruger has a statement to make, but that statement loses all power and meaning.

However, as should be obvious, not all artists agree with appropriation. There are many who believe that art is a form of expression, that it should be unique and original. Abstract expressionism is a prime example of an art movement that fits with this group of artists.
Jackson Pollock is, today, the iconic abstract expressionist, known for his large-scale drip paintings. Although Pollock is deceased, and it is generally in bad taste to use someone as a reference when they are no longer around to make their point, we can extrapolate from what we know about him to deduce that he would most likely not approve of the appropriation we see today. Pollock stated “painting is self-discovery. Every good artist paints what he is,” and appropriation flies in the face of this. When an artist appropriates, they are using someone else’s work – to Pollock, this would be near blasphemy; it would be taking what someone else is and using it in the artist’s work. Pollock’s thought that “the modern artist is… expressing his feelings rather than illustrating” aligns with this view. Pollock thought that art should come from the self, the universal unconscious, rather from external sources.
All of Pollock’s works exhibit this theory. Autumn Rhythm was created on a large canvas that would encompass the viewer’s vision, eliciting a visceral reaction – tying in with the expressionist approach; the viewer could potentially feel what Pollock felt while creating the piece (it is as Tolstoy said: “One man laughs, and another who hears becomes merry; or a man weeps, and another who hears feels sorrow… and it is upon this capacity of man to receive another man’s expression of feeling and experience those feelings himself, that the activity of art is based”[12]).
Pollock’s Lavender Mist also exhibits this quality. The way in which Pollock painted exhibits his thinking that art came from the self, rather than the external surroundings. Pollock didn’t work from drawings; he didn’t make sketches and drawings and colour sketches into a final painting. He stated “the painting has a life of its own”, and that “technique is just a way of arriving at a statement”. Most importantly, “painters do not have to go to a subject matter outside of themselves. Most modern painters work from a different source. They work from within.”
Appropriation, by nature, is not working from within. It is working exclusively – the appropriated aspect, at least – from external, pre-existing sources. The thought of intentionally taking an existing image, created by someone else – such an intimate and personal act to Pollock – and using it in his own work would have been alien and absurd to him.

There are various aesthetic theories that, while more useful in defining whether or not appropriation is art at all, can be used in support of appropriation. For one, it is so common today, and so readily accepted by many people (upon writing this paper, it was said to me by someone with assumedly no formal education in art that it may “not be possible to not appropriate these days”) that the institutional theory of art – the theory that an object becomes art when it is considered by the “artworld” (a term coined by Arthur Danto in 1964 to mean “all the people involved in the production, commission, preservation, promotion, criticism, and sale of art”[13]) to be a piece of art.
Didacticism, a philosophy that emphasises informational and educative qualities in art, is also in support of most forms of appropriation, as a common core aspect of appropriation is that it has a message or criticism of some aspect of the artwork or society – the works are often intended to force the viewer into questioning something.
The state of the artworld in reference to authorship, ownership, and meaning is a precarious battleground, as the tenets of post-modernism still hold strong. With the death of the author, the meaning intended by the author or artist is no longer necessarily relevant, and as such, it could be seen as acceptable by some for artists to appropriate with complete disregard for the original intended message – and while this would perhaps not hold up in a court of law deciding fair usage, it would almost certainly lead to heated debate within the artworld. In fact, in our post-modern society, it is common for artworks to hold no inherent meaning whatsoever (a post-modernist response to the meaningful artworks created in the modernist era) – this could potentially be combined with appropriation to create an appropriated artwork without any inherent meaning. Of course, returning once more to the death of the author, the lack of inherent meaning intended by the artist could then be interpreted by the viewer to mean many things – the meaning required by appropriation in the traditional view and in courts of law being one of them.

In the end, it all comes down to context. Even the post-modernist approach with a lack of ownership and originality is dependent on context – if we were not living in a post-modernist society, the artworld would not be as accepting. The courts of law have their 4 Factors of Fair Use, but take lawsuits on a case-by-case basis. Pollock would view appropriation as something unacceptable, but once again, he was influenced by the context of the artworld he lived in – a modernist society, with a focus on the self, originality, and expression. Within the next few decades, our societal view on appropriation will change, being as controversial and debated as it is at the moment – who’s to say what will come next?


[1] Stanford University Libraries, Measuring Fair Use: the Four Factors http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/9-b.html

[2] Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994).

[3] The Thomas Jefferson Centre, 2005. Art on Trial: Copyrights and Artistic Expression. http://www.tjcenter.org/ArtOnTrial/copyright.html

[4] Talent Development Resources. Copyright
http://talentdevelop.com/censorship2.html

[5] Forsythe, Tom. The Fight for Free Speech
http://www.tomforsythe.com/the-fight-for-free-speech.html

[6] Finnegan, Internet Trademark Case Summaries: Mattel, Inc. v. Walking Mountain Prods
http://www.finnegan.com/MattelIncvWalkingMountainProds/

[8] Gaddy, James, Print Magazine (2007). Shadow Boxer
http://www.printmag.com/Article/Shadow_Boxer

[9] Dr. Alexander, Christopher, Notes on Words (2010). Appropriation in Art: Warhol’s Brillo Boxes
http://creativewritingenn198.blogspot.co.nz/2010/07/appropriation-in-art-warhols-brillo.html

[10] Nonetheless, a popular reading is that the hollowness of the boxes emphasise the emptiness of either commercial culture, pop art, or Warhol’s work itself.

[12] Tolstoy, 1896. What is Art?

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The Aesthetics of Video Games

The Smithsonian American Art Museum recently held an exhibition entitled “The Art of Video Games” – an exhibition exploring the “forty-year evolution of video games as an artistic medium”[1]. In no way is the thought of regarding video games as art a new one, but this is certainly the first time it has been awarded such publicity. For decades the gaming community, both developers and players, have accepted video games as a form of art, but the concept has been largely ignored by aestheticians and society as a whole – by these, video games have been regarded simply as entertainment, a way to spend time.

At first glance, this view on games seems rather reasonable, no? After all, they are the mass-produced fodder of basement-dwellers, aren’t they? Not so. Take a closer look and think – even on the simplest, most inarguable level, video games are at least a container for art – in them we see all forms of traditional art – visual artworks, aural works, and narrative pieces, for example. These we all regard on their own as art forms, but when combined into the medium of video games, we seem to disregard that.

Cube, a New Zealand-developed game for the PSP, is simplistic – the player tilts and rotates the point of view as a stick figure walks from one side of a map to another. But the game utilises traditional forms of art – specifically, visual, and can be read as an exploration of form and line. The maps are made up of cubes composed purely of line, and as the changing perspective aligns blocks in a purely visual element, they become physically aligned, and the figure is able to walk across them. The soundtrack to Cube contains music by New Zealand band Pitch Black – music that is ambient and electronic, adding to rather than detracting from the experience. While this game may not be considered a work of art, perhaps, it is certainly a container for, at the very least, an exploration into form and line.

But it goes further than games being simply a container for traditional forms of art. The aesthetics of video games is becoming more and more a common topic for debate and discussion amongst aesthetic philosophers. The arguments range from the simplistic, hosted on blogs and published by gamers proud of their medium, to the complicated and literary PhD theses penned by professors at various universities. The gamers argue in terms of the combination of graphics, sound, and storyline, whereas the philosophers argue in terms of advanced aesthetic and philosophical theories. Both ends of the scale present valid and interesting points while aiming at different readerships.

Dylan Woodbury, of the former group, begins by defining the “main criteria (sic) of an art form – it must interact with a person’s deep self, including both senses and emotions, in a way specific to that medium”[2]. He goes on to argue that while most games do not achieve this criterion, a few do, referencing the arcade classic, Missile Command, in which the player is defending cities from nuclear attack. At first glance, I personally would not have considered Missile Command a game worthy of art status, but upon deeper inspection, I agree with Woodbury’s point. The game is simplistic, but poses a moral dilemma that most players seem to be unaware of – the player is given three bases and must defend six cities. The player is left to decide how to play – do they value one base, needed to protect the cities, over a city and the lives contained therein? Do they try to save everyone – a much harder challenge – or choose to protect a one or a few cities? He claims Missile Command “has a lot to say about the destruction of war and inevitability of death, all though play, not graphics, sound, or story”. In this way, the game transcends the traditional art forms contained within and has a message created by the gameplay itself – which links to the personal definition of art that I hold – a piece of art is something that is either created with the intent to have some meaning or message or has the ability to be imbued with meaning and has the potential to elicit a response from the viewer, be it emotional, mental, spiritual, or visceral.

Most of the philosophical end of the argument is not based on whether or not the games have meaning or whether they elicit responses from players, but on the technicalities and aesthetic theories regarding traditional art – specifically, regarding passivity versus interaction and authorial intent.

Traditionally, viewers of artworks have been passive and have no control over the piece, maintaining authorial control. Roger Ebert, film critic, in 2005 stated that “video games by nature require player choices, which is the opposite of the strategy of serious film and literature, which requires authorial control”[3]. However, in the post-modernist, post-structuralist world we live in, authorial control is no longer as much of an issue – the viewer’s interpretation and derived meaning is equally important, if not more important than the meaning intended by the author, if such a meaning even exists.

If we are to examine video games as a form of art, we cannot simply adapt an existing aesthetic. When asked if video games would ever have their Moby Dick or Citizen Kane, Henry Jenkins, a prominent game theorist at MIT, responded “My first response is to ask whether the analogy is the right one. If the question is, ‘Will video games become a serious art form in its own right?’ I think the answer is inevitably yes. Whether the analogy is to literature or to dance or to cinema or to theater or any number of other media, it’s hard to know what the right approximation is. In a way, to ask the question that way is like asking ‘Will cinema become theater?’”[4]. As such, the answer is to develop an aesthetic that relates to and pays attention to the intrinsic qualities of the medium. One of these qualities is interactivity. Games are not created for the spectatorial element, they are created to be played. Therefore, there is no way we can approach the topic of video games as art with an aesthetic that focuses primarily on spectatorship and passivity – it must make interactivity central to the theory.

Interactivity is, by definition, essential to video games – it is a very part of the medium itself. A player interacts physically with the game via some form of controller, be it a keyboard and mouse, joystick, multi-buttoned controller, or even a camera or remote requiring the player to simulate the way they want their character to move, and the game responds in some way – most commonly, the player’s avatar or character moving. In a similar way, the game interacts with the player – a character in-game gets injured, and the controller vibrates, in some cases simulating a heartbeat. The interaction is beyond the physical, though. It is not an uncommon sight to see gamers playing a game involving driving or racing emulating the movement of their vehicle by rotating or tilting their controller – an action prevalent even before developers included technology to enable this as a legitimate form of control. Whilst playing horror-based games, players may lean in toward the screen in intense focus, and jump back in legitimate fright when something pops out at them. This back-and-forth between player and game – or viewer and art – is simply an interesting observation until one links it to John Dewey’s philosophical theories. Dewey, a naturalist, philosophised that there is no breach between self and world – “The world we have experienced becomes an integral part of the self that acts and is acted upon in further experience. In their physical occurrence, things and events pass and are gone. But something of their meaning and value is retained as an integral part of the self. Through habits formed in intercourse with the world, we also in-habit the world. It becomes a home and the home is always part of our every experience”[5]. Philip Deen explains this relevance better than I ever could: “Novels allow access to the inner lives of characters in a way that other media do not. Music and dance evince a specific bodily response”[6]. Deen goes on to reference John Lanchester and his opinion that video games surpass other forms of media: “The interiority of the novel isn’t there, but the sense of having passed into an imagined world is”[7].

According to Dewey, experience is both precarious and stable. Deen states that “Absent either, growth is not possible. Rather, growth occurs only in dynamic equilibrium as old habits are found inadequate to novel situations and new ones must be developed. Interaction is marked by periods of disharmony and re-harmonization where we fall out of habitual relation with the world and have to develop new ways of fruitfully transacting with it”[8]. The interactivity in games exhibits this rhythm of experience being precarious and stable, and it is in this way that the interactivity allows for authorial intent. The author of a game will write a major plotline, the story itself, and in doing so, they constrict the player to a specific series of events, but it is a series of events that is interactive – quests or missions may be optional, there may be multiple plotlines or side-plots that a player can choose between. Ultimately, a game is, as Deen puts it, a “structured interaction”.

This directly refutes Ebert’s claim that video games may not be considered art due to a lack of authorial control. It is evident that while the player’s interaction may influence the game, the author still has the control and intent, be it in perhaps a less traditional form.

Dewey’s theory of the lack between self and world is also relevant to the consideration of video games as art in relation to aesthetic distance – the concept of the gap between the viewer’s conscious reality and the fictional reality contained within a piece of art. It is arguable that, due to the back-and-forth of interaction between game and player and the responses elicited by the game and, indeed, the player, that video games have the highest potential for a close aesthetic distance. Aesthetic distance is integral to the aesthetic of video games not only because of this potential, but because it, in return, assists in interactivity. The more a player is engrossed in a game – ie, the closer aesthetic distance a game has – the more likely the player is to respond to events within the game. If a game as achieved a close aesthetic distance, a player is more likely to, for example, jump in response to events on screen, or feel an emotional attachment to a character.

However, currently, many games fall flat when it comes to achieving aesthetic distance due to a concept called “ludonarrative dissonance”. The term, coined by Clint Hocking in reference to the game Bioshock[9], refers to conflicting concepts, or dissonance, between gameplay and the narrative within a game. This dissonance violates the aesthetic distance, pulling the player out of the reality of the game. Since Hocking’s article coining the term, many other bloggers have written similar articles, pointing out the ludonarrative dissonance in other games such as the Mass Effect series and Max Payne.

The ludonarrative dissonance in BioShock is due to two differing choices offered in the game – one in the ludic element, and one in the narrative element. The ludic choice is one that is common in single-player games due to the majority of the other characters in play being in conflict with the main character – ‘do what is best for me without consideration for others’. This choice aligns with the values of Randian rational self-interest, an underlying value of the game itself. The game’s narrative offers another choice – to help Atlas and progress further in the game. Unfortunately, this does not align with the self-interest clause – helping someone else is not a part of Randian rational self-interest. More importantly, the narrative does not offer a choice – the player is constrained by the narrative of the game to help Atlas, and thus, the narrative is at odds with the gameplay. This is a major and complex example of ludonarrative dissonance, and perhaps is one that the average gamer would not notice. There are other, more obvious examples, however – more often encountered in games with free-roam elements, where the narrative is not necessarily strictly linear. Commonly referenced are games such as Grand Theft Auto 4 – the main character does not kill or hurt anyone he does not have to in the game’s cutscenes, but within play, the moral compass defined by the designers spins wildly as the player, if they so wish, kills and commits crime wantonly.

According to Hocking, and undoubtedly other, non-philosopher gamers, ludonarrative dissonance is the last barrier between games and art status. Hocking claims that while Bioshock is not the video game medium’s Citizen Kane, it shows us “how close we are to achieving that milestone. BioShock reaches for it, and slips. But we leave our deepest footprints when we pick ourselves up from a fall. It seems to me that it will take us several years to learn from BioShock’s mistakes and create a new generation of games that do manage to successful (sic) marry their ludic and narrative themes into a consistent and fully realized whole”[10].

It is clear that interaction is integral to the aesthetic of video games, and there is no way that can change; it is their nature. But passivity and authorial control is no longer an issue – and not only in terms of post-modernism – while games are interactive, an author is still able to have their control; in fact, it is just as integral as the interactivity itself. As Jonathan Wilson, yet another blogger, points out, a game that has infinite capacity for interaction and freedom, in the current gaming world, would be an impossibility – “how would you frame or sell a game without any story framing, with no showing of who the bad guys and good guys are? Being able to create a story that does not contradict itself when placed into the hands of someone who could play the same section as everyone else yet experience something different?”[11]
Video games without interactivity is an impossibility – and, ironically, without interactivity and the resulting aesthetic distance, video games would probably not have come this far in terms of artistic status. As Aaron Smuts, philosopher, puts it, “video games are possibly the first concreative, mechanically reproduced form of art: they are mass artworks shaped by audience input”[12].


[2] Woodbury, Dylan. (2011) “Defining the Art of Video Games”, http://www.gamasutra.com/blogs/DylanWoodbury/20110308/89112/Defining_the_Art_of_Video_Games.php

[3] Ebert, Roger. (2005) “Answer Man” Chicago Sun Times. November 27, 2005. http://rogerebert.suntimes.com/apps/pbcs.dll/section?category=ANSWERMAN&date=20051127 Retrieved February 9, 2010.

Ebert, Roger. (2007) “Games as Art: Ebert vs. Barker” Chicago Sun Times Online. July 21, 2007. http://rogerebert.suntimes.com/apps/pbcs.dll/article?AID=/20070721/COMMENTARY/70721001 Retrieved February 9, 2010.

[4] Vitka, William. (2006) “Will Video Games Ever Have Their ‘Moby Dick’ or ‘Citizen Kane’?” CBS News Online, March 23, 2006.

[5] Dewey, John. (1934) Art as Experience from The Collected Works of John Dewey. Carbondale: Southern Illinois University.

[6] Deen, Philip. (2011) Interactivity, Inhabitation, and Pragmatist Aesthetics. Game Studies, http://gamestudies.org/1102/articles/deen

[7] Lanchester, John. (2009) “Is it Art?” London Review of Books. 31.1 (January 1, 2009): 18-20.

[8] Deen, Philip. (2011) Interactivity, Inhabitation, and Pragmatist Aesthetics. Game Studies, http://gamestudies.org/1102/articles/deen

[9] Hocking, Clint. (2007) “Ludonarrative Dissonance in Bioshock”. ClickNothing, http://clicknothing.typepad.com/click_nothing/2007/10/ludonarrative-d.html

[10] Hocking, Clint. (2007) “Ludonarrative Dissonance in Bioshock”. ClickNothing, http://clicknothing.typepad.com/click_nothing/2007/10/ludonarrative-d.html

[11] Wilson, Jonathan. (2012) “Why the Ludonarrative Dissonance is Video Games Biggest Challenge”. The Play Vault, http://theplayvault.com/wp/2012/04/30/why-the-ludonarrative-of-dissonance-is-video-games-biggest-challenge/

[12] Smuts, Aaron. (2005) “Video Games and the Philosophy of Art”. Aesthetics Online, http://aesthetics-online.org/articles/index.php?articles_id=26