From Readymade to Boilerplate: Robert Sikoryak’s Terms and Conditions: The Graphic Novel

Glance at Robert Sikoryak’s Terms and Conditions: The Graphic Novel (2017) and you might dismiss it as a lark—albeit a clever one—far removed from modernist concerns (fig. 1).[1] Sikoryak’s book, self-described on the front cover as both “complete and unabridged” as well as an “unauthorized adaptation,” reprints the entire 20,000+ words of the Apple iTunes Terms and Conditions legal agreement as was current in 2017. Each page of this so-called “graphic novel” (more on that label below) takes Apple’s corporate legalese and repurposes it as the dialogue or narrative backstory of an entirely different comic strip. For example, his quite faithful adaptation of one of John Stanley and Irving Tripp’s pages from Little Lulu (1956), replaces the characters’ dialogue with phrases from the Apple contract penned into the speech bubbles: “You agree that you will pay for all products you purchase through the Services” (Terms, 7). The result is an extensive, even encyclopedic, exploration of comics of the past century and earlier, imagined anew with strange verbal and visual juxtapositions. Characters do not speak normally in any sense (they are only speaking legalese), even as they interact with one another as human (or other) beings. No genre or mode is spared: we see pages adapted from Marvel Comics’ X-Men (on the front cover and Terms), Incredible Hulk, and Spider-Man, along with classic newspaper funnies such as Garfield, Calvin and Hobbes, and Family Circus (10, 23, 14, 26, 21, 91). Early, fascinating comics examples are reimagined, such as Winsor McCay’s gorgeous Little Nemo (1905) and Rube Goldberg’s delightful drawn inventions (1931), as well as later innovative work of Edward Gorey, R. Crumb, Allie Brosh, Marjane Satrapi, and Julie Doucet (22, 48, 61, 18, 35, 78, 92).

The use of the term “graphic novel,” moreover, is pointed. Quite clearly, Terms and Conditions is not a novel in any typical sense of the generic term; Sikoryak is being at a little tongue-in-cheek with his subtitle. At the very least, he's foregrounding the fact that “graphic novel” has become a kind of shorthand for “comics” that some readers, publishers, and retailers now associate with certain kinds of books, itself perhaps a boilerplate that's lost much of its denotative specificity. 

Whether or not we expect them, certain resonances with modernist experiments surface quickly. Each of Sikorayak’s comic sources is painstakingly referenced in the index at the book’s close, resembling a more complete, legally cautious version of T. S. Eliot’s notes at the end of The Waste Land (1922). Terms and Conditions’ method also owes something to the Dadaist linguistic experiments and randomized, collaborative Surrealist drawing games (such as Exquisite Corpse) from an earlier century. As he explains in the “development notes” at the end, “Each page is based on a specific preexisting comics page or series of panels” which he “drew 10 to 14 pages at a time” (107). He “then combined [them] with the iTunes text . . . occasionally shuffl[ing] the order of the drawn pages to allow for some interesting juxtaposition of word and image, but generally any connection between the two was complete happenstance” (107). In an interview, Sikoryak elaborated on his technique, with reference to another modernist luminary:

[Sikoryak] read the [legal] agreement as “a literary artifact,” and while the document’s artistic merits were a little hard to locate, they were not wholly absent. “It’s got some repetition,” he said approvingly. “It’s not Gertrude Stein, but it has some poetic elements.”[2]

With the allusion both to Stein’s iterative, modulating phrases and to his relationship to his found source material, Sikoryak’s modernist antecedents continue to emerge. His compositional techniques invoke the tradition of locating and selecting language discovered from elsewhere, resignifying that material as “found poetry.” As Haun Saussy observes, the found poetry of Guillaume Apollinaire and Kurt Schwitters was one of the early twentieth-century avant-garde’s innovations, but millennia earlier, Chinese folk poetry was following a related path.[3] Poets ranging from canonical modernists such as Eliot, Ezra Pound, and Marianne Moore to Langston Hughes, Muriel Rukeyser, and Charles Reznikoff have produced versions of found poetry in their work, a tradition that lives on in the texts of poets such as Alice Notley, Kenneth Goldsmith, and Claudia Rankine. Some contemporary poets, such as Jena Osman, have taken Reznikoff’s example in Testimony and have used legal cases and language as a jumping off point for poetry.[4]

But Sikoryak’s illustrations of Apple’s click-through agreement, also colloquially called boilerplate—or, more traditionally and technically, a standard-form contract—raise a longer and intriguing backstory that has gone unremarked on for too long. In recounting this story here, I hope to show how legal history and modernist innovation have been woven together from the start, as these types of agreements were becoming common—and worrisome to legal scholars—around the 1910s and in the decades thereafter. Sikoryak’s book relies on this longer history. Boilerplate is typically defined as “(1) Ready-made or all-purpose language that will fit in a variety of documents,” or “(2) Fixed or standardized contractual language that the proposing party often views as relatively nonnegotiable.”[5] Consumer agreements incorporating such “ready-made” language are often called “adhesion contracts” (or sometimes “end user license,” “shrinkwrap,” or “clickwrap” agreements) because, as with Apple’s terms and conditions, the purchaser has no bargaining power when deciding whether or not to adhere to its conditions. Hence no one, including some of the field’s major legal scholars on standard-form contracts, reads them.[6] Your options are only to click “yes” (or to rip open the packaging) if you assent to the agreement’s obligations, or to click “no” to terminate your access to their product.

Taking these legal concepts as a starting point, I want to suggest that Sikoryak’s Terms and Conditions addresses its reader in ways resembling the Dada photomontages of Hannah Höch or, more aptly, the Readymades of Marcel Duchamp, Elsa von Freytag-Loringhoven, and Morton Schamberg. Those avant-garde artists took mass-produced objects and resituated them institutionally so that they would be approached anew by the spectator who had never paid such commodities much sustained attention before. Terms and Conditions makes a similar gamble by redeploying Apple’s “ready-made” language in a different setting and circumstance. In the process, Sikoryak’s graphic novel exposes to lay audiences a reality that some legal contracts scholars, particularly in law and economics, have made. Namely, the boilerplate contracts we “agree” to daily should not be considered contracts at all, but more aptly operate as a kind of object: a commodity we purchase and to which we are, for better or worse, legally binding ourselves. In essence, the contract becomes part of the purchased object itself; the Terms and Conditions for iTunes become inseparable from iTunes. In other words, Sikoryak’s Terms and Conditions understands legal boilerplate language functioning like a mass-produced object, such as an advertisement for enamel paint or a bathroom sink pipe. Although those commodities are invariably useful to someone, they only become representationally meaningful when an artist, whether Marcel Duchamp (with Apolinère Enameled [1916–1917]), Elsa von Freytag-Loringhoven and Morton Schamberg (with God [1917]) or Sikoryak, makes it so.

From the very start, “boilerplate” specified a commodity. The word initially “referred to the plating of steam-engine boilers of the Industrial Revolution and, soon after, to newspaper print casts” permitting duplicate articles to be syndicated for (and distributed to) the country at large.[7] Early in the twentieth century, the term’s usage became more metaphorical and referred to stereotyped or formulaic writing in general. The particular legal use of “boilerplate” appeared in the mid-1920s, although it was not common usage at that point.[8] But already early twentieth century legal scholars were disturbed by the proliferation of increasingly meaningless language in standard-form agreements. Traditionally (since at least the fourteenth century), contracts had been understood to contain basic elements establishing that an agreement had been reached. Over the centuries, conceptualizations of and requirements for that agreement shifted. In the nineteenth century, contract was understood to entail a set of promises between parties premised on what is still known as a “bargained-for exchange” or “consideration” (that is, that some benefit, even a token one, has been bargained for and exchanged hands). But as mass-produced commodities proliferated with the industrial revolution, actual contracts were not resembling this ideal. As contemporary scholar Lewis A. Kornhauser puts it, “most agents . . . interact only with prices; they do not dicker over terms with other agents.”[9] The “impersonal world” of mass-produced commodities conformed not with the idealized contracts of the past but with “the impersonality of the standard form contract” (Kornhauser, Unconscionability, 1154).

In 1917, at virtually the same moment artists invented the Readymades, Harvard business law professor Nathan Isaacs warned that this proliferation of impersonal standard-form contracts, filled with ready-made language, was creating a situation that undermined individuals’ agreements. Contracts were regressing to what Henry Maine had called an earlier “régime of status.”[10] With standard-form contracts, “the details of legal rights and duties are determined not by reference to the particular intentions of the parties, but by reference to some standard set of rules made for them” (Isaacs, “Standardizing,” 39). In other words, Isaacs saw the rise of standard-form contracts as an ominous recharacterization of equitable legal rights into something more feudal. By the 1930s, this mutating situation had a name and was understood to be a disturbing issue harming society. “The problem of standardization” was Karl N. Llewellyn’s term for it.[11] Llewellyn described this legal situation of “standardizing contracts” as part of the trend toward mass standardization more generally, “a counterpart of standardizing good and production processes,” and one that had not yet been sufficiently examined (Standardization, 701).

During the same decade, legal philosopher Morris Cohen became skeptical that standard-form contracts, such as a purchased train ticket (a genre that still incorporates boilerplate), could be understood as a contract at all. If the requisite contractual components were absent, why call this purchase a contract? Although “courts and jurists” treat the purchase of a train ticket as a contract, and “speak of its ‘terms’ and of the rights and duties under it,” there is “certainly no bargaining between the two parties.”[12] He continued: “Obviously, therefore, we have here a situation in which the law regulates the relation between different parties and it is pure fiction to speak of it as growing out of any agreement of the wills of the parties” (“The Basis of Contract,” 569). This reasoning, and the arguments supporting the legal fiction, led Cohen to question the fairness of other kinds of agreements that function like or with boilerplate. Specifically, he noted that labor contracts were not what they purported to be:

There is, in fact, no real bargaining between the modern large employer (say the United States Steel Corporation) and its individual employees. The workingman has no real power to negotiate or confer with the corporation as to the terms under which he will agree to work. He either decides to work under the conditions and schedule of wages fixed by the employer or else he is out of a job. If he is asked to sign any paper he does so generally without any knowledge of what it contains and without any real freedom to refuse. (569)

Cohen published this essay in 1933 at the nadir of the Great Depression and at a robust moment in labor movement activism. Two years later, Congress passed the National Labor Relations Act (1935), decriminalizing union organizing and granting workers the rights to join collective bargaining agreements and to strike.[13] Also known as the Wagner Act, this statute began to amend the situation that boilerplate’s coercions had helped create.

However, in the decades to follow, standard-form contracts lived on. In the prosperous postwar era, they grew nimble and proliferated, becoming more standardized, impersonal, and objectlike. Simultaneously, the legal term “boilerplate” became common by the 1960s, most prominently when U.S. Supreme Court Justice Hugo Black predicted—correctly—that formulaic clauses “will soon find their way into the ‘boilerplate’ of everything from an equipment lease to a sales contract.”[14] In 1970, Yale law professor Arthur Allen Leff took these concerns one step further. Picking up on Llewelyn’s observations from decades past, he too observes that “the mass produced contract is complementary to, and has the same economic utility of, the mass-produced product.”[15] But that complementary scenario produced consequences that Llewellyn had not drawn out. Most provocatively, Leff argues that a “contract is more of a ‘thing’ than the goods which are sold pursuant to it” (“Contract as Thing,” 147). That is, observing that standard-form agreements lack the requisite attributes of a contract, he reasons that they should not be classified as contracts at all, but considered to be things. Once we “actually think about consumer contracts as things . . . that would open up the law’s long tradition . . .  of direct, explicit governmental control of the quality and safety of products” (149). In other words, we might have reason to treat these “contracts”–as–things not as private, protected agreements but as a kind of consumer product, which is to say, as the potentially regulatable commodities that they are.

Fifty years later, a lively debate on this topic still percolates in contract law. Some scholars simply accept the scenario of contract-as-product as a tolerable capitalist reality. Others think that accepting these parameters degrades the very notion of contract and undermines our legal rights, since click-through agreements operate without most of a contract’s basic presumptions (bargained-for exchange, agreement, process, etc.).[16] Most relevantly, since no one reads this “language” as meaningful, boilerplate seems to be using words in some radically different way. Contemporary legal commentators have hypothesized how this language really works, expanding on the repercussions. For Michele Boardman, boilerplate leads to the demise of legal interpretation, which is “given up in exchange for other values,” such as “a private meaning . . . between the courts and the sophisticated [i.e., corporate] drafter.”[17] For Stephen Choi, Mitu Gulati, and Robert E. Scott, boilerplate leads to rote terms mindlessly “reused for decades” that become “emptied of any recoverable meaning”; that scenario creates what they call “a contractual black hole,” in which a boilerplate term has “lost all or . . . almost all meaning.”[18] Such results are a version of what Leff pointed out, namely, “[i]f . . . a particular contract is a mass-produced inalterable thing, then the words that make it up are just elements of the thing, like wheels and carburetors” (Leff, “Contract as Thing,” 153). As a modernist literary scholar might say, under the pressure of commodified language, meaning has undergone a violent, transformative process, and words have been reduced to their signifiers.

Returning to Terms and Conditions’ appropriations, we can see how boilerplate’s absurdities, inscrutability, and tendency towards pointlessness are being mocked. In one panel, a 1931 cartoon by Rube Goldberg, originally titled “Simple Way to Take Your Own Picture,” is faithfully redrawn with a chubby version of Steve Jobs playing the part of Professor Lucifer Butts (figs. 2 and 3). (The figure of Steve Jobs is incorporated into every one of these panels, usually as the protagonist—I’ll have more to say about that artistic decision below). Like many Rube Goldberg machines, Butts’s invention produces the ridiculously involved (and in this case racist and offensive), comical happenstance of a series of actions that could not be regularly depended on to produce anything like the desired action (fig. 2). That action, of course, could have been satisfyingly accomplished with some modest gesture. Butts wiggles his big toe to set off a series of events that includes “catapult[ing] Arabian midget (G) to trapeze (H)” and upsetting a pitcher of syrup, “attracting hungry fly (M) which swoops down, allowing weighted end of bar (N) to lift screen (O),” and so on. A send-up of standardized, piecemeal factory production, the absurd “machine” creates an imagined pathway to produce, virtually, nothing at all.

Terms and Conditions’ redrawing maintains the stylized line and composition of Goldberg’s cartoon, point for point: the “Arabian midget,” the pitcher of syrup, the fly, are all waiting to be activated by Jobs’s wiggling toe (fig. 3). But rather than trying to annotate the diagram directly, Sikoryak’s handwritten language below the image lists a set of byzantine, interactive, permissible terms for how one may use iTunes content. A Rube Goldberg machine of boilerplate, it reads like an LSAT logic game problem (and no doubt was written by a team of corporate lawyers). You may (i) download content on up to “10 Associated Devices, provided no more than 5 are iTunes-authorized computers”; (ii) an “Associated Device can be associated with only one Account at any given time,” and (iii) “you may switch an Associated Device to a different Account only once every 90 days.” And so on. Sikoryak’s point is clear: iTunes’s interwoven terms are so complex and impossible to follow that they are as valuable for listening to music as Butts’s “Simple” photography device is for taking a self-portrait. And, in a sense, Terms and Conditions is also making the point that reading intertextually, between image and boilerplate, is what permits you to analyze this absurd language at all.

Postwar art deployed versions of this very strategy; think of the Pop Art of Andy Warhol and Roy Lichtenstein, and more recently, the politically-inflected conceptual art of Barbara Kruger and Jenny Holzer. But, as I suggested above, such work has a longer history connected with Dada photomontage and, particularly, the graphical Readymades. When boilerplate appears in the iTunes’ click-through agreement, this language is barely tolerated; on some more fundamental level readers derisively ignore it. That response resembles the attitude toward mass-produced printings—the advertisements and kitsch art reproductions—that early twentieth century artists selected and slightly altered by recontextualization. Duchamp explained in one of his interviews that the idea of the Readymade came from “trying to draw a conclusion or consequence from the dehumanization of the work of art.”[19] His Readymades rely on the alienating aspect of mass-produced objects, as estranging as the boilerplate we agree to and that Sikoryak dependably copies. Such estrangement could be elicited in all sorts of ways. Later in life, Duchamp was especially appreciative of the trend towards performative “Happenings” (in the 1950s and 1960s) because they “introduced into art an element no one had put there: boredom. To do a thing in order to bore people is something I never imagined!”[20] Duchamp needs the spectator’s disturbed sense of outrage to finalize his work, which is why “the creative act is not performed by the artists alone; the spectator brings the work in contact with the external world.”[21] The experience he describes is most obvious in terms of the Readymades, which depend on the shock of the spectator synthesizing the juxtaposition of the dejected, mass-produced object in the refined gallery setting.

Terms and Conditions’ method owes much to these earlier experiments with dehumanization, estrangement, and methodically generated boredom. Sikoryak takes, as a whole, the language that has become mass produced by corporate lawyers to release a company like Apple from most liabilities. Such language no longer feels like it means the way language is supposed to: legal scholars have already identified these words as nearly meaningless and object-like. He then uses his artistic hand, rather than a mechanical copy, to redraft cartoons and Apple’s legalese, rendering both into a new form. That new form permits you to see the cartoon and the boilerplate language as distinct from what they once were.[22]

Whereas Duchamp manipulates the institutional framework of the gallery and museum space to make his selection and signing gesture meaningful to spectators, Sikoryak uses the comic history framework for a similar purpose. Just as we reject pop-up advertisements, and would steer way clear of a public urinal that someone had pulled from the wall and scrawled on, so too do we quickly scroll through or click “I agree” to the terms and conditions that appear so often in our daily lives. Is there any faster way to reject language than to hurriedly scroll past it and then “accept” it? Both a Duchamp work, such as Apolinère Enameled (1916–17), and any Sikoryak panel force the spectator or reader to slow down and consider what they are looking at more closely, in the context they have before them. By invoking a very broad and even global history of comics in his “graphic novel,” Sikoryak produces an effect commensurate with (albeit in its own way) that of a vast gallery space. He gives us a museum of comics, in a sense, and drops Apple’s boilerplate—the dejected linguistic equivalent of a urinal—into it.[23]

Moreover, in Sikoryak’s hands, pages like the revision of “Little Lulu,” the John Stanley and Irving Tripp comic strip from the 1950s, show how corporate legalese relies on and mimics essential human social interactions (fig. 4). In this strip, we see a typical kind of personal interaction that comics often represent: Lulu dealing with a hectoring man, now transformed into the figure of Apple’s founder and longtime head Steve Jobs. The images incorporate a section of Apple’s “terms of sale” agreement, particularly the subcategory “payments, taxes, and refusal policy.” Lulu is holding a green apple and generously offers it (back) to the Jobs character; he leers and begins to lecture her, or maybe berate and mansplain at her. She says nothing in reply, but her facial expressions, which range from pleasant to surprised, gradually reveal her anger, as she is subjected to this abuse. She cannot give her apple back to this Jobs figure (“All sales and rentals of products are final”). With her gift rejected, Apple’s total dominance in this relationship has been made clear to her, as the legal scholars of boilerplate have described. The entire episode, overlaid with an interaction that feels entirely familiar to us, is actually a show of arbitrary economic and legal force.

By incorporating Jobs into every one of these panels, Terms and Conditions also underscores the fact that Jobs became symbolically inseparable from the corporation he founded. His likeness returns with a slight difference on every page, whether in the persona of Homer Simpson, Snoopy, or an X-Man (figs. 5a, 5b, and 5c). He can contain multitudes. Yet he always wears a short beard, wire-rimmed glasses, and a dark blue turtleneck sweater. He is both a shape-shifter yet almost always the same, a mansplainer who complains, threatens, mourns, or worries, as the narrative occasion warrants. And since the boilerplate language is the only thing he can or will say, the comic also tries to understand what to make of someone who is so enmeshed with his corporate persona that he almost seems not to exist without it. While the book is not a biography of Jobs, it works a little like a cultural biography of him as a corporate person, portraying his mythical presence as he speaks to us in legalese.

Even the cover of the book makes this point (fig. 1). A closer look reveals that multiple versions of Jobs, in all his many guises, make up the “frame” of the cover. Corporate power comes in many different shapes and sizes, these multiple personas seem to suggest, and can mimic human expressivity and our emotional range in all sorts of ways. Many of these Jobs-personas on the cover are clearly trying to communicate something to us, or so it seems. Their hands gesticulate, their mouths are open, their faces are contorted or otherwise expressive or thoughtful or conniving. But the much larger Jobs-brute on the cover—Jobs in the guise of the X-Men’s “Wolverine”—flashes his teeth and shows us his inhuman-metallic fist (with retractable claws), making clear the kind of entity we are really dealing with. Jobs is in his most violent guise here. Impaling an iPhone with his claws represents both his total possessiveness of this commodity as well as its virtual continuity with his corporate and personal identity. But there is clearly also something destructive about this possessiveness too. We can “click agree” on the iPhone “to agree to these terms” (as the included “terms and conditions” language states), but the beastly image implies that we are merely “agreeing” to our domination, which is not agreement but powerful coercion. Again, Sikoryak is dramatizing the point that legal scholars on boilerplate have made: that this so-called “agreement” has nothing to do with two people coming to an agreement. The reason standard-form contracts like this one are also called “adhesion contracts” is because of the force implied in them: they adhere to you whether you agree to them or not. Like the Jobs-Wolverine’s metal claws impaling your iPhone, you are stuck with this commodity’s conditions.

The seemingly explicit purpose of Sikoryak’s Terms and Conditions is to nudge you to read and think about all of these words more carefully—almost certainly far more carefully than you’ve ever read any click-through agreement before. But the project’s novelty, and the difficulty, still, of actually reading all of this language, underscores just how meaningless signs taken for words remain when they appear in these kinds of agreements. Boilerplate is the end result of a theory of corporate language and commodified contracts that developed with and during American modernism—a thing we’re still living with today.

Notes