What is Art? - Southwestern Law School

What is Art? A brief review ofinternational judicial interpretations ofart in the light of the UK SupremeCourt’s 2011 judgment in the Star Warscase: Lucasfilm Limited v. AinsworthBy Henry Lydiate*Table of ContentsIntroduction................................................................................... 111I. Cultural Perspectives............................................................. 112A. The Creative Act ............................................................. 112B. Art .................................................................................... 113C. Artists............................................................................... 114D. Art Business..................................................................... 114E. Gutenberg to the Celestial Jukebox................................ 115F. International Reciprocity................................................. 117II. Historical Perspectives .......................................................... 118III. Trials of Modern Art............................................................. 120IV. Trials of Contemporary Art .................................................. 125V. Star Wars ............................................................................... 135Envoi ............................................................................................. 143IntroductionThe law experiences little, if any, difficulty recognising works ofmusic, literature, dance, mime, drama, or film, or combinations ofthem. But the law does find it difficult to recognise visual art—irrespective of its merit. This difficulty is further compounded by ongoingchange and development in the nature and practice of art, whichis both fundamental and integral to the activity.*Henry Lydiate was called to the English Bar in 1974, and is Visiting Professor inArt Law at the University of the Arts London, an art lawyer, and art business consultantat The Henry Lydiate Partnership LLP.111

112 J. INT’L MEDIA &ENTERTAINMENT LAW VOL. 4,NO. 2These issues are important for lawyers, jurists and artists—as wellas the wider public—and locate within in an increasingly global artenvironment. We will explore them in five parts:• cultural perspectives• historical perspectives• trials of modern art• trials of contemporary art• the recent Star Wars case.I. Cultural PerspectivesBefore exploring the history of cases where art and artists havefound themselves before courts of law, let us first consider creativity,art, artists, art business, and art practice.A. The Creative ActMarcel Duchamp is widely recognised as one of the most influentialartists of the 20th century, in the middle of which, he offered a personalview of the creative process: “Millions of artists create; only a few thousandsare discussed or accepted by the spectator and many less again areconsecrated by posterity. In the last analysis, the artist may shout fromall the rooftops that he is a genius: he will have to wait for the verdictof the spectator in order that his declarations take a social value, andthat posterity finally includes him in the primers of Art History. I knowthat this statement will not meet with the approval of many artists whorefuse this mediumistic role and insist on the validity of their awarenessin the creative act—yet, Art History has consistently decidedupon the virtues of a work of art through considerations completelydivorced from the rationalized explanations of the artist.” 1He goes on to assert: “Art may be bad, good or indifferent, butwhatever adjective is used we must call it art, and bad art is still artin the same way that a bad emotion is still an emotion.” 2Furthermore, and central to his thesis, he suggests: “The creative acttakes another aspect when the spectator experiences the phenomenonof transmutation: through the change from inert matter into a work ofart, an actual transubstantiation has taken place, and the role of the spectatoris to determine the weight of the work on the aesthetic scale.” 31. From Marcel Duchamp’s public talk on The Creative Act delivered at the Conventionof the American Federation of Arts, Houston, Texas, in April 1957.2. Id.3. Id.

114 J. INT’L MEDIA &ENTERTAINMENT LAW VOL. 4,NO. 2sent they have entered the tradition as if by simple chronologicaldistance.” 8C. ArtistsEven though there is ample evidence of surviving art and artefactsand architecture from the dawn of civilisation, there is little knowledgeof the identity of their authors. 9 It was not until the 17th century, chieflyduring the Golden Age of art and architecture in the Netherlands andduring the Qing Dynasty in China, that surviving records began to identifyartists as we have come to know them today—creating works on aspeculative basis and offering them for sale in the open market.The interaction of social and economic changes, over time, provideskeys to our understanding of why societies gradually embraced thepractice of artist as a distinct career—“of men who spend all theirtime in the production of useless things . . . who are exempted fromgrowing food.” 10 Urban dwellers have always relied on buying surplusesproduced by rural labour, and especially in cities where a significantmass of wealthy and powerful people—high net worth individuals—can also afford to patronise original creations of the ‘artist’.D. Art BusinessDirect patronage of the wealthy and powerful was the principalsource of income for creators of art and artefacts and architectureuntil the 17th century, or so. Scientific, technical, and industrial inventionsand developments from around this era (and beyond, to date) increasinglyfacilitated the creation of artworks that were moveable andtransportable objects. This led to: the practice of collecting uniqueand desirable art objects, also and increasingly by the newly rising8. Id.9. “In the Middle Ages the individual artist remains invisible behind the corporatefacades of church and guild. Greco-Roman and Chinese histories alone report in anydetail the conditions of individual artists’ lives. A few names and lines of text are allwe have about Egyptian dynastic artisans. The records of the other civilisations of antiquityin America, Africa, and India tell nothing of artists’ lives. Yet the archaeologicalrecord repeatedly shows the presence of connected series of rapidly changingmanufactures in the cities, and slower ones in the provinces and in the countryside,all manifesting the presence of persons whom we call artists.” KUBLER, note 6 supra.10. The Tomb of the Unknown Craftsman was an exhibition held at The British Museumin London in 2012. It was an installation of new works by Turner Prize winnerGrayson Perry, comprising objects made by unknown men and women throughout historyfrom the British Museum’s collection alongside new works by Perry; who explained:“This is a memorial to all the anonymous craftsmen that over the centurieshave fashioned the manmade wonders of the world. . .The craftsman’s anonymityI find especially resonant in an age of the celebrity artist.” See http://www.britishmuseum.org/whats_on/exhibitions/grayson_perry/introduction.

WHAT IS ART? 115merchant classes; re-sales of works, and the establishment of the artmarket place of auction houses 11 and dealers; the foundation of national/statemuseums and galleries to curate and publicly exhibit artand other cultural objects acquired from other states as symbols ofconquest. 12 Such activities involved many and various transactionswe now describe as the art business, most requiring legal form or regulation:commissioning contracts; sales contracts; deeds of gift orloan; import taxes and export restrictions; establishment of trustsand foundations for collections and related endowments; and the creationof statutory public authorities.New technologies and techniques were avidly embraced by artistskeen to extend their market place, by making reproductions of theirunique works and selling them at much lower and affordable pricesto the general public: our next consideration.E. Art Practice: Gutenberg to the Celestial Jukebox 13The Western printing press was invented around 1440 by Gutenberg.14 This seminal technology not only revolutionised and facilitatedindustrial production of literary texts, but also mass dissemination ofcopies of unique paintings and drawings. During the following twocenturies the printing press became widely used throughout the thendeveloped world. A variety of visual images—technical drawings andinstructions, humorous cartoons, illustrated advertisements—became increasinglypopular, especially with the largely illiterate masses, andadded a new option alongside the existing fine art prints produced bymore limited autographic reproductive processes.Writers and their publishers then became concerned that unauthorisedcopying and publication of their original literary workswas seriously damaging their sales income, and eventually persuadedgovernments to legislate through a limited form of what we now call11. Sotheby’s auction house was established in 1744 (see http://www.sothebys.com/en/inside/about-us.html; Christie’s in 1766 (see http://www.christies.com/about/company/history.aspx, both in London, England; and Drouot in 1852, in Paris, France(see http://www.drouot.com/static/drouot_historique_enchere.html?lang=en.12. The British Museum, London, England, was opened to the public in 1759;Musée du Louvre, Paris, France, in 1793; Nationale Kunst-Gallerij, The Hague, Netherlands,in 1800 (relocated to a new building in Amsterdam and renamed The Rijksmuseumin 1885); Museo Nacional del Prado, Madrid, Spain, in 1819; The NationalGallery, London, England, in 1824; and the State Hermitage, Saint Petersburg, Russia,in 1852.13. The Celestial Jukebox was originated by Paul Goldstein in PAUL GOLDSTEIN,COPYRIGHT’S HIGHWAY (2003).14. Johannes Gensfleisch zur Laden zum Gutenberg (1398–1468).

116 J. INT’L MEDIA &ENTERTAINMENT LAW VOL. 4,NO. 2copyright in the common law world. 15 The first such law was enactedin 1709/10 by the English Parliament, commonly known as the Statuteof Anne, 16 and was soon emulated in other countries. 17Visual artists 18 subsequently lobbied governments to include theirworks in copyright laws, which initially protected recognised artforms—drawings, paintings, prints, sculpture, architecture—againstcopying and publishing without the artist’s prior consent; and to doso irrespective of artistic content or quality (a subject to which we returnlater). Over the last hundred years or so, artists have developedmany new and radically different forms of art—reaching far beyondthe traditional forms recognised at the end of the 19th century. Duringthis dramatic period of artistic innovation, copyright legislation hasbeen very slow to respond in recognising such new art media and practice(a subject to which we also return later).However, over the last century copyright legislation has kept betterpace with the development of new technology and processes for reproducingand publishing copies of artworks. Legislative changes weremade to outlaw copying and dissemination of copyright works throughunauthorised audio/visual recording, physical copying by analogueor digital means and physical or digital distribution thereof. Digitaldistribution, especially the development of online sharing and storagemethods, is an area where the law has struggled to keep pace. Cloudcomputing, where personal data is stored across a network of servers,is a recent lawful development of methods used by illegal file sharingnetworks, facilitating interaction between users who wish to share copyrightmaterial across a vast network of individual computer systems.In recent years, major television broadcasters have established ondemandservices for their viewers that operate in a similar way to You-Tube 19 ; or have a YouTube channel where current programmes arelawfully available on-demand for no fee, and with targeted webspecificequivalents of the broadcast advertisements: a celestial juke-15. It is known as le droit d’auteur in French, diritto d’autore in Italian, and derechosde autor in Spanish.16. The Copyright Act 1709 gave authors the exclusive right to reproduce theirworks for 14 years. See http://www.copyrighthistory.com/anne.html17. This includes the Copyright Clause in the U.S. Constitution “The Congressshall have Power . . . To promote the Progress of Science and useful Arts, by securingfor limited Times to Authors and Inventors the exclusive Right to their respectiveWritings and Discoveries.” (U.S. CONST., art. I, § 8, cl. 8); and the Copyright Act1790, 1 Stat. at Large 124 (1790).18. The Engraving Copyright Act 1734 was enacted in Britain; sometimes calledHogarth’s Act after the popular artist who lobbied for this law. William Hogarth(1697–1764) was an English painter, printmaker, illustrator and satirical cartoonist.19. Such as the BBC iPlayer.

WHAT IS ART? 117box. The concept of the celestial jukebox is exemplified by Spotify:rather than delivering a music file for retention by the subscriber (aswith iTunes), material is streamed on demand to the user—literally,a jukebox via satellite transmission.F. International ReciprocityIn 1886, at the height of the Industrial Revolution, developed nationspromulgated the Berne Convention. 20 This seminal internationalagreement (and its subsequent revisions throughout the 20th century)addressed two key problems relating to the worldwide enforcementof copyright: each signatory country’s copyright legislation was differentto the others, and was not enforceable beyond its own jurisdictionalboundaries. Signatories undertook to amend their domestic legislation: toprovide minimum standards for domestic/national copyright law; and torecognize and enforce the copyright works of authors from other signatorycountries, as they did for their own authors. The Berne Convention’sinternational harmonisation and reciprocal enforcement of copyrightlaws provided a model for subsequent international intellectual propertytreaties throughout the 20th century, to date. 21However, international agreements encounter common language andtranslation issues, especially when seeking to describe or define art.Diplomatic compromises and concessions are made to achieve agreement,often producing bland or ambiguous treaty provisions. Internationalagreements concerning copyright generally permit each signatorycountry itself to interpret and/or define any legal meaning of art withinits own national legislation. For example, the Berne Convention initiallydescribes “artistic works” as follows: “every production in the artisticdomain, whatever may be the mode or form of its expression”; thencontinues by specifying an inclusionary list of art forms: “such asworks of drawing, painting, architecture, sculpture, engraving and lithography;photographic works to which are assimilated works expressedby a process analogous to photography; works of applied20. The Berne Convention for the Protection of Literary and Artistic Works (1886)(hereinafter “Berne Convention”), http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html The UK joined the Berne Union in 1887, the U.S. in 1989; by 2011there were 164 member countries. See also http://www.wipo.int/treaties/en/ip/berne/.21. See Universal Copyright Convention (1952), http://www.wipo.int/wipolex/en/other_treaties/text.jsp?file_id=172836; Universal Copyright Convention (1971),http://portal.unesco.org/en/ev.php-URL_ID=15241&URL_DO=DO_TOPIC&URL_SECTION=201.html; Agreement on Trade-Related Aspects of Intellectual PropertyRights (TRIPS) (1994), http://www.wto.org/english/docs_e/legal_e/27-trips.pdf; andthe World Intellectual Property Organization (WIPO), Copyright Treaty (Dec. 20,1996), www.wipo.int/treaties/en/ip/wct/trtdocs_wo033.html.

118 J. INT’L MEDIA &ENTERTAINMENT LAW VOL. 4,NO. 2art; illustrations, maps, plans, sketches and three-dimensional worksrelative to geography, topography, architecture or science.” 22 It thenprovides: “It shall, however, be a matter for legislation in the countriesof the Union to prescribe that works in general or any specified categoriesof works shall not be protected unless they have been fixedin some material form.” 23 Whether national copyright laws of BerneConvention countries have been able to implement Berne in suchways that recognise innovative visual art forms developed during thelast 100 years or so, will be explored later; as will difficulties encounteredby courts applying such laws to specific cases.II. Historical PerspectivesArt is no stranger to the courtroom. Western art history is pepperedwith cases where visual art has been the central factual and legal issuefor the court 24 ; and where judges have been required to consider itsrelevance in a legal context—usually, but not always, reluctantly.Two landmark cases will be considered in pursuit of this article’s thesis.1511 Italy: Dürer v. Raimondi 25From around 1501 Dürer 26 made and marketed a series of 19 woodcutprints about the Life of the Virgin. These were of an exceptionallyhigh standard, and attracted the attention of Marcantonio Raimondi(the engraver used by Dürer’s friend and colleague Raphael 27 ) whowas able to engrave, print, and sell multiple copies of them—withoutDürer’s knowledge or consent. Raimondi ignored Dürer’s eventual‘cease and desist’ entreaties (directly and via Raphael), and continuedhis evidently profitable merchandising venture. In 1511 Dürer finallysought a legal remedy from the Senate of the Venetian Republic. 28The facts were not in dispute and, in the absence of any intellectual22. Berne Convention, note 20, supra, art. 2(1).23. Id., art. 2(2).24. For wider contemporary consideration of many more such cases, see LAURIEADAMS, ART ON TRIAL (1976); DANIEL MCCLEAN, THE TRIALS OF ART (2007).25. For a fuller exploration of this case, see PON, L.RAPHAEL, DÜRER &MARCAN-TONIO RAIMONDI: COPYING AND THE ITALIAN RENAISSANCE PRINT (2004).26. Albrecht Dürer (1471–1528) was a German painter, printmaker and engraver:leading artist of the Northern Renaissance. He achieved great success throughout Europe,in large part through his multiple reproduction prints of his own paintings anddrawings.27. Raffaello Sanzio da Urbino (1483–1520) was a progenitor of the Italian HighRenaissance.28. From the 7th century to 1797 it was formally entitled the Most Serene Republicof Venice. In 1511 Venice was one of the leading sea-faring and trading nations in thethen developed world.

WHAT IS ART? 119property rights laws, the Senate exercised its inherent jurisdictionalpowers over trade to allow Raimondi to continue producing and merchandisingDürer’s images; with the proviso that he could not in thefuture include on them Dürer’s unique ‘AD’ signature or brand. 29Not only is this one of the earliest recorded cases in the developmentof copyright laws, it also illustrates the Senate’s difficulty in understandingthe true nature of Dürer’s art (and his legal claim). TheSenate seemingly focused on the innovative and highly technicalskill and labour Raimondi employed in making engraved copies; noton the art. Dürer’s original images were the art; not his original woodcutsor his prints thereof, and not Raimondi’s engraved renditions ofDürer’s original images or his prints thereof. In granting Dürer a remedyin relation to Raimondi’s future use of his “logo”—his brandidentity—the Senate also heralded the development of what becametrademark and other intellectual property laws.1573 Italy: Inquiry of the Venetian Inquisition v. Veronese 30In 1572, at the height of his career, Veronese 31 was commissionedby the monastery of San Giovanni e Paolo in Venice to make a largepainting of The Last Supper to adorn the refectory, to replace an earlierwork by Titian 32 that had been destroyed by fire the previousyear. In 1573 Veronese delivered a very large canvas, 39 feet wideby 17 feet high, on which he had updated the ancient Biblicalscene by placing it in a contemporary Italian palazzo. 33 He had expandedthe traditional gathering of Jesus and his twelve disciplesby adding a large number of curious-looking people, including “buffoons,drunken Germans, dwarfs and other such scurrilities ...ajesterwith a parrot on his wrist . . . a servant who has a nose-bleed from someaccident...armedmendressedinthefashionofGermany,withhalberdsin their hands” 3429.30. For an English translation of the trial transcript, See FRANCIS MARION CRAWFORD,SALVE VENETIA: GLEANINGS FROM VENETIAN HISTORY. VOLUME: 1 (1905); Elizabeth C.Childs, Suspended License: Censorship and the Visual Arts (1997).31. Paolo Cagliari (1528–1588), popularly known as Veronese from the city of hisbirth, Verona was an eminent fresco and oil painter in the Mannerist style of the ItalianLate or High Renaissance, especially in Venice alongside Titian and Tintoretto.32. Tiziano Vecellio (1488–1576), popularly known as Titian, was the pre-eminentmember of the so-called Venetian School, with Veronese and Tintoretto.33. Such “modernisation” was commonly practised by artists during theRenaissance.34. Crawford, supra note 30; Childs, supra note 30.

120 J. INT’L MEDIA &ENTERTAINMENT LAW VOL. 4,NO. 2The Roman Catholic Church at that time jealously guarded its articlesof faith, especially from attack by the rapidly growing ProtestantChristian faiths in Northern Europe: so much so that, a decade earlier,the Ecumenical Council of Trent had decreed a key tenet to be that thebread and wine at the Roman Catholic Mass transubstantiated into thebody and blood of Christ. In this politically sensitive climate, it wasinevitable that Veronese was prosecuted for his inclusion of such charactersin his composition. 35 The Inquisitor asked Veronese “Did someperson order you to paint Germans, buffoons, and other similar figuresin this picture?” Veronese replied “No, but I was commissioned toadorn it as I thought proper; now it is very large and can containmany figures ...Wepainters take the same licence as do poets andmadmen.” 36 The Inquisition’s judgment was temperate: Veronesewas ordered to “correct” the painting. After some months of reflectionVeronese achieved this, by painting on the canvas these words: “Feastin the House of Levi”. 37This uncompromising yet elegantly diplomatic solution evidentlysatisfied the court of Inquisition, 38 and not only demonstrates the professionalconfidence of the artist in defending his own work under forensicinquiry; but also reflects the Inquisition’s surprisingly enlightenedapproach that respected the artist’s professional independence.This case also heralds key issues (to which we return later): thepower and influence exercisable by artists of high standing; and judicialrecognition of the importance of the artist’s intentions in the creativeact.III. Trials of Modern ArtFrom the early Italian Renaissance period around 1400 through tothe mid-19th century, successive generations of artists in the westernworld sought to produce images as true to life as their techniqueswould allow. Even though the form and content of art was increasinglynaturalistic and realistically representational throughout these centuries,courts struggled to interpret, construct and apply the law tocases where they were required to recognise and understand the art35. Crawford, supra note 30; Childs, supra note 30.36. Id.37. Reference to the feast is contained in Luke’s Gospel: “And Levi made him agreat feast in his own house: and there was a great company of publicans and of othersthat sat down with them.” Luke 5:29 (King James version).38. The canvas survived, unaltered further; it now hangs at the Gallerie dell’Accademiain Venice, Italy.

WHAT IS ART? 121of their era. 39 Such forensic difficulties were relatively modest, comparedwith the greater challenges thrown up by the work of artists fromthe second half of the 19th century 40 to date. Around 1840 artistsfiercely debated whether the invention of photography 41 heralded“the death of art”. 42 Many young and emerging artists reacted againstphotography by creating works depicting images a photograph couldnot achieve. The celebrated 1863 Salon des Refusés 43 in Paris, Franceheralded the birth of what we now know as Impressionism, 44 whichthen developed into Post-Impressionism. 45 The innovation continuedas subsequent generations variously developed Symbolism, 46 Fauvism,47 Cubism, 48 Expressionism, 49 Surrealism, 50 throughtoPopArt 51 :a hundred year period contemporary art historians now classify asModern Art.39. See McClean, supra note 24.40. See Whistler v. Ruskin, discussed in the text accompanying notes 53–59 infra.This 1878 lawsuit exemplifies the turbulent debates during the last quarter of the 19thcentury between artists themselves, and with critics and connoisseurs, over thennascent Modern Art styles, forms, techniques, and subject-matter.41. Louis-Jacques-Mandé Daguerre (1787–1851) was a French artist and physicist,who invented the first (daguerreotype) photographic technique in 1837.42. Walter Benjamin, A Short History of Photography (Literarische Welt, Germany,18 & 19 Sept. and 2 Oct. 1931).43. The prestigious Paris Salon of 1863 was inaugurated by the French government.The selection jury rejected as unsatisfactory around 3,000 works submittedby young and emerging artists, who vociferously complained to the authorities.Such artists were offered showing space in a small annex to the main Salon, whererejected works were shown; these works included one by the 31 year-old ÉdouardManet (Le déjeuner sur l’herbe, 1862–3), which is now in the French national collectionat the Musée d’Orsay, Paris) and one by the 29 year-old James McNeill Whistler(Symphony in White, No. 1: The White Girl, 1861–2), which is now in the collectionof the National Gallery of Art, Washington, D.C.44. Early Impressionists notably included Frédéric Bazille (22), Armand Guillaumin(22), Pierre-Auguste Renoir (22), Claude Monet (23), Paul Cézanne (24), AlfredSisley (24), Édouard Manet (31), and Camille Pissarro (33).45. Notably: Paul Gauguin, Vincent van Gogh, Georges-Pierre Seurat, PaulCézanne, and Henri de Toulouse-Lautrec.46. Notably: Frida Kahlo, Gustav Klimt, Gustave Moreau, Edvard Munch, andAuguste Rodin.47. Notably: André Derain, Raoul Dufy, Henri Matisse, Jean Puy, and GeorgesRouault.48. Notably: Georges Braque, Marcel Duchamp, Fernand Léger, Francis Picabia,Pablo Picasso, Diego Rivera, and Max Weber. Also notably, Cubist works werefirst exhibited in the United States in 1913 at the landmark Armory Show in NewYork City.49. Notably: Egon Schiele, Paul Klee, Wassily Kandinsky, Marc Chagall, Willemde Kooning, and Max Weber.50. Notably: Giorgio de Chirico, Max Ernst, Joan Miró, Francis Picabia, SalvadorDalí, Luis Buñuel, Alberto Giacometti, and René Magritte.51. Notably: Peter Blake, Patrick Caulfield, Jim Dine, Richard Hamilton, KeithHaring, David Hockney, Robert Indiana, Jasper Johns, Allen Jones, Roy Lichtenstein,Takashi Murakami, Claes Oldenburg, Eduardo Paolozzi, Robert Rauschenberg, LarryRivers, Ed Ruscha, and Andy Warhol.

122 J. INT’L MEDIA &ENTERTAINMENT LAW VOL. 4,NO. 2How did courts respond to the ever-changing form and content ofwhat artists regarded as their art in the late 19th and early 20th century?Our starting point will be consideration of judgment of a work by anearly ‘modern’ artist, James Whistler. 521878 England: Whistler v. Ruskin 53Nocturne in Black and Gold: The Falling Rocket (1872–1875) 54 waspainted by Whistler in oils on canvas. The subject was a night-timefireworks display over Battersea Bridge in London. The small (23.7inches high by 18.3 inches wide) painting was executed in an impressionistic,rather than the (then) orthodox representational, style: it conveyeda sense of atmosphere, with glowing colours and drifting smokeagainst a dark sky over the River Thames. The work was first exhibitedat the prestigious Grosvenor Gallery in London, in a group showthat included paintings by Pre-Raphaelite artists such as EdwardBurne-Jones. The critic John Ruskin 55 published a review of theshow in one of his popular pamphlets, Fors Clavigera, on 2 July1877. He lauded Burne-Jones and others; but lambasted Whistler:“For Mr. Whistler’s own sake, no less than for the protection of thepurchaser, [the Grosvenor Gallery] ought not to have admitted worksinto the gallery in which the ill-educated conceit of the artist so nearlyapproached the aspect of wilful imposture. I have seen, and heard, muchof Cockney impudence before now; but never expected to hear a coxcombask two hundred guineas for flinging a pot of paint in the public’sface.” 56Whistler’s sales took a sharp downturn after Ruskin’s widely publishedattack. Whistler sued for libel, seeking £1,000 for damage to52. James Abbott McNeill Whistler (1834–1903) was an artist born in Lowell,Massachusetts, who relocated to Europe, Paris in particular, eventually settling inLondon. He became widely known through his close association in the 1860s withcontroversial “modern” artists such as the French Realist painter Gustave Courbetand the Impressionist Éduard Manet.53. Officially unreported. The case was tried at the Court of Exchequer Divisionof the High Court in London on 25 and 26 Nov.1978. Whistler v. Ruskin, THETIMES (LONDON), Nov. 27, 1878, at 9. See also LINDA MERRILL, APOT OF PAINT: AES-THETICS ON TRIAL IN WHISTLER V. RUSKIN (1992).54. It is now in the collection of the Detroit Institute of Arts, Detroit, Michigan.55. John Ruskin (1819–1900) was a pre-eminent and very influential British art criticof his generation, who professed that an artist’s core function was “truth and nature”. Hewas a staunch defender of then controversial “modern” paintings by J. M. W. Turneragainst fierce critics. He was greatly influenced Pre-Raphaelite painters such as WilliamHolman Hunt, John Everett Millais and Dante Gabriel Rossetti, and founded the RuskinSchool of Drawing at Oxford University.56. RONALD ANDERSON &ANNE KOVAL, JAMES MCNEILL WHISTLER: BEYOND THEMYTH 215.

WHAT IS ART? 123his artistic reputation. To do so, he and his lawyer had to convince thejury of his artistic abilities and standing.Study of Whistler’s cross-examination reveals the heart of Ruskin’sline of defence. Question: “What is the subject of Nocturne in Blackand Gold: The Falling Rocket?” Whistler: “It is a night piece and representsthe fireworks at Cremorne Gardens.” Question: “Not a view ofCremorne?” Answer: “If it were A View of Cremorne it would certainlybring about nothing but disappointment on the part of the beholders.It is an artistic arrangement. That is why I call it a nocturne.”Question: “Did it take you much time to paint the Nocturne in Blackand Gold? How soon did you knock it off?” Answer: “Oh, I ‘knockone off ’ possibly in a couple of days—one day to do the work and anotherto finish it ...”.Question: “The labour of two days is that forwhich you ask two hundred guineas?” Answer: “No, I ask it for theknowledge I have gained in the work of a lifetime.” 57Whistler was the David of the forensic set-piece, Ruskin the Goliath.Whistler’s many artist peers and supporters, who had promised to give evidence,failed to do so; Ruskin’s did, including Burne-Jones. The jury’stask was invidious: effectively, whether to recognise artistic merit inthe (then) unorthodox ‘modern’ painting style of so-called impressionism;and, if so, to place a monetary value on Ruskin’s damage to Whistler’sprofessional reputation. Ruskin was found guilty, and ordered topay one farthing 58 in damages. Costs were borne by each party. Such derisoryawards were commonplace at the time, whenever juries in civil trialswere faced with “a delicate and ultimately insoluble legal dilemma.” 59This is arguably the last time an artist sued a critic for defamation.The courtroom is clearly the wrong place for a forensic fight over aestheticmerit. Indeed, it has often been said over the intervening centurythat Whistler’s lawyers would have been wiser to claim (if at all) damageto Whistler’s sales of work (of which there was ample hard evidencefollowing Ruskin’s public attack), rather than damage to hisartistic competence.We now consider the landmark trial of art initiated by a progenitorof Modern Art, often referred to as the Patriarch of Modern Sculpture,Romanian artist Constantin Brâncuşi. 6057. PETRA TEN-DOESSCHATE CHU, NINETEENTH CENTURY EUROPEAN ART 349.58. This was the lowest value coin of the Realm.59. Francis L. Fennell, The Verdict in Whistler v. Ruskin, VICTORIAN NEWSLETTER,Fall 1971, at 17, 21.60. Constantin Brâncuşi (1876–1957) was an Abstract Expressionist sculptor, bornin Romania, who settled and remained in Paris, France from 1904.

124 J. INT’L MEDIA &ENTERTAINMENT LAW VOL. 4,NO. 21928 USA: Brâncuşi v. United States 61In the 1920s Brâncuşi began an exploration of the shapes of birds inflight. In 1923 he carved a work in marble that “concentrated not onthe physical attributes of the bird but on its movement. In Bird inSpace wings and feathers are eliminated, the swell of the body is elongated,and the head and beak are reduced to a slanted oval plane.Balanced on a slender conical footing, the figure’s upward thrust is unfettered.Brancusi’s inspired abstraction realizes his stated intent tocapture ‘the essence of flight.’ This particular conception of Bird inSpace is the first in a series of seven sculptures carved from marbleand nine cast in bronze, all of which were painstakingly smoothedand polished.” 62In 1926 a consignment of twenty Brâncuşi sculptures arrived atNew York by steamship from France, including a bronze version ofBird In Space. 63 US Customs demanded payment of import duty of40% of the market value of its bronze material as ‘merely a manufactureof metal’: around $230. Works of art could be imported duty freeunder the 1922 Tarrif Act. Brâncuşi filed suit claiming that his workwas in law an ‘original sculpture’ and therefore exempt from importduty. 64 At the heart of the case lay the question: what is Modern Art?In 1928 a US Customs Court in New York ruled that Brâncuşi’ssculpture was a work of art, not an ‘article of utility’, as US Customshad claimed. This seminal trial, and especially its enlightened ruling,has been cited by art lawyers worldwide for eight decades as an iconiclegal precedent. Both parties called expert witnesses to attest whetherthe bronze artefact was indeed art. The US Customs appraiser had assertedthat “Several men, high in the art world were asked to expresstheir opinions for the Government and one of them told us, ‘If that’sart, hereafter I’m a bricklayer.’ Another said, ‘Dots and dashes areas artistic as Brâncuşi’s work.’ In general, it was their opinion thatBrâncuşi left too much to the imagination.” Brâncuşi gave evidence61. Brancusi v. United States, 54 Treas. Dec. Cust. 428 (Cust. Ct. 1928).62. Catalogue entry of the Metropolitan Museum of Art, New York, which acquiredthe original marble sculpture in 1995 as a bequest from Florene M. Schoenborn,who had bought the work in 1942: 57 inches high, 6 1/2 inches diameter. A seriesof seven was made in marble. Nine were cast in bronze (two of which are in thecollection of Museum of Modern Art, New York, one at the Philadelphia Museum ofArt). One sold at auction in the U.S. for $27.5 million in 2005, the then highest hammerprice for any sculpture.63. U.S. photographer Edward Steichen had bought the work in France and Brâncuşiarranged for it to be shipped to the United States, accompanied by the artist’sfriend and colleague Marcel Duchamp.64. Marcel Duchamp suggested the lawsuit; Gertrude Vanderbilt Whitney financed it.

WHAT IS ART? 125of his execution of the work: “I conceived it to be created in bronzeand I made a plaster model of it. This I gave to the founder, togetherwith the formula for the bronze alloy and other necessary indications.When the roughcast was delivered to me, I had to stop up the air holesand the core hole, to correct the various defects, and to polish thebronze with files and very fine emery. All this I did myself, byhand; this artistic finishing takes a very long time and is equivalentto beginning the whole work over again. I did not allow anybodyelse to do any of this finishing work, as the subject of the bronzewas my own special creation and nobody but myself could have carriedit out to my satisfaction.”The court’s judgment relied strongly on the intentions of the artist,and the opinions of eminent art experts. It held: “There has been developinga so-called new school of art, whose exponents attempt toportray abstract ideas rather than to imitate natural objects. Whetheror not we are in sympathy with these newer ideas and the schoolswhich represent them, we think the fact of their existence and their influenceupon the art world as recognized by the courts must be considered.”The court concluded: “The object now under consideration . . .is beautiful and symmetrical in outline, and while some difficultymight be encountered in associating it with a bird, it is neverthelesspleasing to look at and highly ornamental, and as we hold under theevidence that it is the original production of a professional sculptorand is in fact a piece of sculpture and a work of art according to theauthorities above referred to, we sustain the protest and find that itis entitled to free entry.”IV. Trials of Contemporary ArtBearing in mind this Brâncuşi case, let us now consider significantjudgments during the last 25 years of Contemporary Art.1987 England: Regina v. Boggs 65In 1984 US artist JSG Boggs 66 was in a diner in Chicago “having adoughnut and coffee and doodling on this napkin . . . sketching a65. Regina v. Boggs, Unreported (Cent. Crim. Ct. London 1987); see also GEOF-FREY ROBERTSON, THE JUSTICE GAME (1999); LAWRENCE WESCHLER, BOGGS: ACOMEDYOF VALUES (1999); Henry Lydiate, The Courtroom as Gallery: The Jury as Spectators,in THE TRIALS OF ART (Daniel McClean ed. 2007).66. James Stephen George Boggs was born in New Jersey, USA, in 1955. Hedropped out of an accountancy course to attend art schools in Florida and NewYork, and settled in London in 1980 to pursue his art practice which, at that time, focusedon graphic representation and interpretation of numerals.

126 J. INT’L MEDIA &ENTERTAINMENT LAW VOL. 4,NO. 2numeral 1, and gradually began embellishing it. The waitress kept refillingmy cup and I kept right on drawing, and the thing grew into avery abstracted one-dollar bill.” 67 The waitress offered to buy the napkinwork, but Boggs refused. He then asked for his bill—90 cents—and suggested “I’ll pay you for my doughnut and coffee with thisdrawing.” The deal was done and, as he was leaving, the waitresscalled out “Wait a minute. You’re forgetting your change”, and gavehim a dime. Boggs practised many such exchanges over the next twoyears, as payment for his basic expenses, including his rent; and determinedthat drawings of currency alone were not his artwork, ratherthat the whole bartering transaction—including the receipt of legal currencyas change—was the real work. A further new artistic medium—performativity—joins the debate.In 1986 Boggs was living in London and successfully pursuing hisart bartering practice, when a journalist suggested that such activitymight be a criminal offence in England unless sanctioned by theBank of England. Boggs therefore “wrote a letter to the Governor ofthe Bank of England, asking him permission to go on drawing likenessesof British currency . . . who wrote back denying permission,telling me what I was doing was illegal and that I was risking confiscationand arrest.” Boggs continued. He was subsequently indicted. 68The case went to jury trial and he pleaded not guilty to four counts,each alleging reproduction of currency. 69 If the jury determinedthat Boggs had indeed reproduced the Treasury Notes specified inthe indictment, 70 he would be found guilty: these were absolute offencesnot requiring the prosecution to prove any mens rea by theaccused—nor, the prosecution stressed in anticipation of the defence,was it relevant that the accused was an artist whose only intention wasto create art.The defence team’s strategy was to transform the public courtroominto a temporary art gallery by exhibiting an array of artworks, and67. This and all subsequent quotations from Boggs are taken from direct conversationsin 1986 and 1987 with Henry Lydiate, who was a member of Boggs’ defenceteam; GEOFFREY ROBERTSON, THE JUSTICE GAME (1999); LAWRENCE WESCHLER, note65 supra.68. The Forgery and Counterfeiting Act 1981, c. 45(U.K.), § 18(1) states: “it is anoffence for any person, unless the Bank of England has previously consented in writing,to reproduce on any substance whatsoever, and whether or not on the currentscale, any British currency note or any part of a British currency note.”69. This was decidedly not a prosecution alleging breach of copyright law.70. Four of Boggs’ artworks had been seized and were exhibited to the jury: eachone was a hand-drawn image of one side of a Bank of England currency: £10, £5, andtwo £1 notes.

WHAT IS ART? 127calling expert witnesses to convey one key message for the jury: forgoodness’ sake, this is art on trial, not mass murder. 71 An array of eminentart experts gave evidence for the defence. They offered the juryearnest, erudite, entertaining, and illuminating discourses about thehistorical lineage of art as currency, bartering traditions, the economicvalue of art, the art marketplace, Dada, 72 appropriation of found objectsby artists, 73 Conceptualism, 74 Performance Art, 75 Trompe-l’oeil, 76and Pop Art. 7771. The nature and flavour of the defence’s appeal to the jury are captured in thefollowing extracts from defence counsel’s opening address: “The Mona Lisa is not a reproductionofanItalianwoman,andVanGoghdidnotreproducesunflowers...Boggsis not an artist of that calibre—and being an artist would in any case be no defencein itself—but if you just look at his drawings you will see that they are not reproductions. . . but an artist’s impression, objects of contemplation . . . they had never beenpassed off as real currency . . . and not even a moron in a hurry would mistake thesedrawings for the real thing, they are obviously drawings . . . Boggs is no mere reproducer,he’s an artist. You may or may not like what he does. You may find what hedoes of value. You may feel that a Boggs isn’t worth the paper it’s drawn on . . . butthat’s not the point. The point is that these are original works of art and not reproductionsat all.”72. “Dada is the groundwork to abstract art and sound poetry, a starting point forperformance art, a prelude to postmodernism, an influence on pop art, a celebration ofanti-art to be later embraced for anarcho-political uses in the 1960s and the movementthat lay the foundation for Surrealism.” See FRANCIS PICABIA (TRANS. MARC LOW-ENTHAL), I AM ABEAUTIFUL MONSTER: POETRY, PROSE, AND PROVOCATION (2007).73. Marcel Duchamp (1887–1968) used found objects and exhibited them as hisown artworks from around 1915. He called them Readymades. He challenged traditionalnotions of what art could be, and especially the idea of art being of aestheticor ‘retinal’ value: “My idea was to choose an object that wouldn’t attract me, eitherby its beauty or by its ugliness. To find a point of indifference in my looking at it,you see.” (Interview, BBC TV, 1966.) Duchamp is widely accepted as the most influentialartist of the 20th Century, being the progenitor of Conceptual Art. See http://www.metmuseum.org/toah/hd/duch/hd_duch.htm.74. Sol LeWitt (1928–2007) was a progenitor of Conceptual Art in the UnitedStates in the 1960s: “In conceptual art the idea or concept is the most important aspectof the work. When an artist uses a conceptual form of art, it means that all of the planningand decisions are made beforehand and the execution is a perfunctory affair. Theidea becomes a machine that makes the art.” Quoted from LeWitt’s article Paragraphson Conceptual Art, ARTFORUM, June 1967.75. Performance Art emerged in the 1950s, and especially the 1960s and 1970s, vianotable visual artists such as Joseph Beuys, Vito Acconci, Yves Klein, Yoko Ono,Barbara T Smith, and Carolee Schneemann. Sometimes called “live art”, it eludes precisedefinition, embracing unscripted or unchoreographed events presented with orwithout audience involvement, not necessarily in an art gallery, lasting for any lengthof time. Marina Abramović (1946–) is the most widely known performance artist currentlyperforming around the world.76. The ancient technique of “perspectival illusionism” (optical illusion) has beenemployed by artists since time immemorial.77. Pop Art developed in the UK and the U.S. in the 1950s, challenging conventionby appropriating mass-produced visual images and icons of popular culture from advertisements,comic books, product and packaging designs, television, and film; oftenusing industrial processes to make “multiple originals” such as photo-silkscreenprinting.

128 J. INT’L MEDIA &ENTERTAINMENT LAW VOL. 4,NO. 2The judge directed the jury that all defence arguments were legallyunsound or irrelevant, and in particular that “this case is not about artisticfreedom or freedom of expression or anything of that sort. Youmay have heard it described as a test case. Nothing could be furtherfrom the truth. This is a very narrow and specific case. Please don’tbe deluded into imagining that you’re trying the contemporary art establishment.It provides no defence whatsoever that the drawings inquestion may be worth more than the originals or, for that matter,that they may in some manner provide the defendant with a principalsource of his livelihood. Whether or not the defendant understood thelaw is immaterial.” It was a direction to convict.English juries, especially at the Old Bailey, fiercely resent beingtold by trial judges what to decide. They returned within fifteen minutesa unanimous verdict of not guilty on all counts. Outside in the OldBailey street, members of the jury came out to shake Boggs’ hand andsay “It was the correct verdict. We loved your work.” Indeed: thejury’s judgement had been persuasively guided by Boggs’ art lawyer’sdeep understanding and advocacy of his art bartering practice: at once,conceptual, performative, and graphically representational. 782007/11 USA: Kelley v. Chicago Park DistrictIn 1984 Chapman Kelley 79 was granted formal permission by theChicago Park District to use a parcel of land in Grant Park to createan original artwork: Chicago Wildflower Works, 1984. 80 Twentyyears later the Chicago park authority bulldozed half of Kelley’s siteand replaced his wildflowers with trees, without his knowledge or consent.Kelley filed suit claiming violation of his statutory moral rightsunder federal law: the Visual Artists Rights Act 1990 (VARA). 8178. One certain legacy of the case is that, soon after their failed prosecution ofBoggs under forgery and counterfeiting (but not copyright) legislation, the Bank ofEngland for the first time included on its Treasury Notes the international copyrightdeclaration: © THE GOVERNOR AND COMPANY OF THE BANK OF ENGLAND.79. Chapman Kelley was born in San Antonio, Texas, USA, in 1932. He is a painter,draftsman, artists’ rights activist, art dealer, lecturer and art teacher.80. It comprised 66,000 sq. ft. into which Kelley planted forty-five different kindsof yellow and purple blooming flowers that were tended by volunteers under his direction,and at his own expense, for twenty years. Kelley described the work as “a sculptureof native flowers, gravel, and steel . . . created with the approval and agreement ofthe Chicago Park District.” See http://www.chapmankelley.com/asset.asp?AssetID=37996&AKey=jlbdk6w281. One hundred sixty four countries have now enacted moral rights legislation,giving creative artists two basic rights: to claim (or deny) authorship of their work(so-called paternity right); and to object to any mutilation or deformation or othermodification of, or other derogatory action in relation to, their work which wouldbe prejudicial to the author’s honour or reputation (so-called integrity right). The United

WHAT IS ART? 129First tried in 2007/8, 82 the heart of the case lay in the question ofwhether Kelley’s work was an artwork entitled to protection underVARA or whether it was merely landscaped public parkland—andtherefore not entitled to such protection. VARA only gives artistsmoral rights over certain forms of art, specified in the US CopyrightAct 1976. The initial trial judge expressed sympathy for, and understandingof, the development in the late 20th century of radicallynew art practices and forms, commenting: “There is a tension betweenthe law and the evolution of ideas in modern or avant-garde art; theformer requires legislatures to [classify] artistic creations, whereasthe latter is occupied with expanding the definition of what we acceptto be art. While Andy Warhol’s suggestion that ‘art is whatever youcan get away with’ is too nihilistic for the law to accommodate, neithershould [moral rights laws] be read so narrowly as to protectonly the most revered work of the Old Masters. In other words, the‘plain and ordinary’ meanings of words describing modern art arestill slippery.” 83 And so the court ruled that Kelley’s work was inlaw a sculpture, or three-dimensional artwork; and also a paintingthat “corralled the variegation of wildflowers in bloom into pleasingoval swatches”. Kelley was rightly pleased with this enlightened initialjudgment, commenting: “This ruling redefines legally what can be fineart, what it can be made of, and that artists themselves make thesedecisions.”However, not all artworks are entitled to copyright and thereforemoral rights protection; only those that pass the legal ‘originality’test required by copyright law (of most countries, including the US),which courts determine in each case. In Kelley’s case the trial courtexpressed difficulty in understanding what was original about hiswork because he was not “the first person to ever conceive of and expressan arrangement of growing wildflowers in [an] ellipse-shapedenclosed area”. 84 The judge further ruled that Kelley’s work was‘site-specific’ and, as such, would not be entitled to moral rights protection(even if it had passed the legal ‘originality test’) because UScase law had decided in 2006 that site-specific artworks—whose integ-States introduced statutory moral rights into federal law through VARA, following theU.S. government’s joining the Berne Convention in 1989. VARA amends the federalCopyright Act 1976 by inserting moral rights of paternity and integrity, but only forliving visual (not other creative) artists.82. Kelley v. Chicago Park District, No. 04 C 07715, 2008 WL 4449886 (N.D. Ill.,Sept. 29, 2008), aff’d in part, rev’d in part, 635 F.3d 290 (7th Cir. 2011).83. Id. at6.84. Id.

130 J. INT’L MEDIA &ENTERTAINMENT LAW VOL. 4,NO. 2rity would be damaged by their removal from a specific site—wereoutside the scope of moral rights protection. 85 Kelley did achieve apyrrhic victory when the court ruled on a separate contractual claimthat the park authority should have given him at least 90 days noticeof its intention to remove half of his work—but awarded him nominaldamages of only $1. Kelley appealed against the court’s rulingsagainst him, particularly that his work failed to satisfy the legal ‘originality’test.In 2011 the appeal court 86 reversed the initial court’s judgmentabout the classification of the work under copyright legislation, decidingthat an artwork “must actually be a painting or sculpture. Not metaphoricallyor by analogy, but really . . . Authors of copyrightableworks must be human; works owing their form to the forces of naturecannot be copyrighted . . . and are not authored or fixed.” 87 Fixation isa further requirement of copyright laws in many jurisdictions beyond,and including, the US, namely: that an original work must be recordedor fixed in a stable material form—not be transient or ephemeral—soas to be capable of being copied in some material form, and thus qualifyfor copyright protection. The appeal court ruled that “the law musthave some limits; not all conceptual art may be copyrighted”; and thatChicago Wildflower Works was created more by nature than by itsconceiver/planner, and comprised “inherently changeable organisms”. 88However, the appeal succeeded on two key issues: that the trialjudge was wrong to hold that the work failed the copyright originalitytest; and that artists’ statutory moral rights did not apply to site-specificworks, in particular that “an all-or-nothing approach to site-specific artmaybeunwarranted...site-specificart...likeanyothertypeofart...can be defaced or damaged.” 89 That latter decision has been hailed as animportant judgment by artists’ rights campaigners who had, since 2006,sought to reverse the so-called Phillips rule 90 denying artists’ statutorymoral rights to their site-specific artworks. At the same time, the appealcourt’s judgment took a narrower and more traditional view of what85. Phillips v. Pembroke Real Estate, Inc., 459 F.3d 128 (1st Cir. 2006).86. Kelley v. Chicago Park Dist., 635 F.3d 290 (7th Cir. 2011), cert. denied, 132S.Ct. 380 (2011).87. This ruling was made by the appeal court of its own motion, not followingarguments advanced by the parties in the appeal.88. The appeal also failed on the contract claim: the court held that the ChicagoPark District official who had informally allowed Kelley to continue use the parkland (after his formal permit had expired) had no legal capacity or authority to do so.89. Kelley v. Chicago Park Dist., 635 F.3d 290 (7th Cir. 2011), cert. denied, 132S.Ct. 380 (2011).90. Phillips, 459 F.3d at 143.

WHAT IS ART? 131art could be (for copyright purposes) than views expressed by contemporaryartists.2010 Germany: VG Bild-Kunst v. Museum Schloss Moyländer 91In 1964 German artist and philosopher Joseph Beuys 92 gave an improvisedtwenty minute performance transmitted on Germany televisionchannel Zweites Deutsches Fernsehen, which he called MarcelDuchamp’s Silence Is Overrated. The performance was not tapedbut Beuys allowed the renowned art documenter Manfred Tischer 93to photograph it. Tischer’s 19 photographs are the only record ofBeuys’s unique live performance; they remained unpublished until exhibitedat Museum Schloss Moyländer 94 in 2008. In 2009 that exhibitionwas curtailed by a temporary court order requiring Tischer’s photographsto be taken down, pending a full trial of a legal claim that theimages violated Beuys’s copyright and moral right of integrity.The lawsuit was brought against the museum by VG Bild-Kunst,Germany’s artists’ copyright collecting society, acting on behalf ofEva Beuys who inherited her husband’s intellectual property rightson his death in 1986. The trial ended in September 2010 when theHigher Regional Court in Düsseldorf gave its final judgment 95 confirmingthe claim, and permanently ordering Tischer’s images not tobe exhibited by the museum.Beuys’s 1964 performance was improvised (and therefore had notbeen performed or fixed in a material form via film or tape beforethe live broadcast) and the only record of it is Tischer’s nineteen photographs.Nevertheless, the court appears to have ruled that Beuys’s91. Unreported. The facts of this case considered in this section are drawn from anunauthorised English translation of the judgment: the court’s written judgment in theGerman language was published and handed down September 29, 2010 by the DistrictCourt of Dusseldorf, Chamber: 12 Civil Division, Application Number: 12 O 255/09.92. Joseph Beuys (1921–1986) was a German artist and art theorist, widely recognisedas one of the most influential artists of the 20th century. A progenitor of PerformanceArt in the 1960s, he also created a large body of 2D and 3D artworks and installations.He developed an “extended definition of art” including especially his“social sculpture” aimed at influencing society and politics. The first and only comprehensiveretrospective exhibition of his works during lifetime was at the GuggenheimMuseum, New York in 1979, which sealed his international reputation.93. Manfred Tischer lived from 1925–2008.94. Located within Moyländ Castle, Bedburg-Hau, Germany, Museum SchlossMoyländer holds the world’s largest collection of Beuys’s works (6,000); and is anexample of an increasing number of modern and contemporary art galleries exhibitingrecords/documents of “non-object based” artworks.95. An authorised English translation of the judgment is not available; the court’swritten judgment in the German language was published and handed down September29, 2010 by the District Court of Dusseldorf, Chamber: 12 Civil Division, ApplicationNumber: 12 O 255/09.

132 J. INT’L MEDIA &ENTERTAINMENT LAW VOL. 4,NO. 2entire performance—though transient and unfixed—was an artworkentitled to copyright and moral rights protection, and that the exhibitionof Tischer’s freeze-frame-like images was an unlawful adaptationof the entire work of Performance Art. 96From an unauthorised English translation of the judgment andmedia reports 97 of the case, the court’s reasoning appears to includethe following findings:• circumstantial evidence in the form of an assessment by expertscan prove the existence of an entire performance, from whichthe court could gain an overall impression and find that an intellectualcreation of the artist was made;• improvised actions are protected by copyright when they reachthe required threshold of originality;• the essence of this art form would be frustrated if art activitieswere denied the status of art on the grounds that they were essentiallybased on improvisation;• German copyright law allows new forms of art beyond the boundariesof traditional art forms to be protected, and such protectioncovers the work as a whole;• it is not necessary for a work to be recorded permanently so that itis capable of being reproduced;• the entire performance lasted at least 20 minutes: the 19 photographsare only snapshots of the work and, thereby, transform adynamic art process into stasis;• the museum exploited an adaptation of the entire performance,without permission of the legal successor to the creator, andwas contrary to copyright law. 98The court’s judgment was unprecedented—not only in Germany,but worldwide—in holding that unrecorded/undocumented/unfixedPerformance Art is capable of being protected by copyright and moralrights laws. Equally significant was the court’s demonstrable understandingand embracing of an avant-garde contemporary art form that96. Performance Art events are essentially transient, often though not always improvised,and infrequently scripted or recorded. In recent times, Performance Artevents and projects have been scripted and/or recorded by the artist/performer/author,which not only helps to meet the ‘fixation’ requirement of intellectual property rightslaws but also enables such secondary ‘documents’ to be sold by the artist in the artmarket place.97. See The Art Newspaper, Nov. 2010, at 13.98. The trial court’s judgement is subject to appeal by the Museum at the time ofwriting, and is expected to be heard during 2012.

WHAT IS ART? 133could not have been contemplated by the promulgators of Germancopyright and moral rights laws.2008 England: Haunch of Venison v. Her Majesty’s Commissionersof Revenue and Customs 99In December 2008 a VAT 100 and Duties Tribunal in London tried acase that was strikingly similar to Brancusi’s eighty years earlier. Theartworks concerned were video installations by Bill Viola 101 and lightworks by Dan Flavin 102 that had been dismantled into their constituentparts for shipping. Art dealers Haunch of Venison had imported theworks into the UK from the US, and had been required by Her Majesty’sRevenue and Customs (HMRC) to pay import taxes on thebasis that they were not artworks, but projectors and light fittings. Accordingto relevant EU and UK import laws, importers of artworks intothe EU are required to pay a reduced VAT rate of 5% (of the works’market value plus insurance and transport costs). Importers of projectorsand light fittings into the EU via the UK are required to pay the normalVAT rate of (then) 17.5% plus Customs Duty of 3.7%. Curiously,HMRC based its assessment of the value of these so-called ‘projectorsand light fittings’ on their market value as artworks.In order to succeed in its appeal against the customs levy, Haunch ofVenison needed to persuade the tribunal that the constituent partsshould be treated as artworks, in particular as ‘sculpture’ within themeaning of EU customs law classifications of imported goods and materials103 ; and called expert witnesses to give evidence in support. Thetribunal was persuaded by this evidence, holding that the meaning of‘sculpture’ had been significantly enlarged and developed by artists99. Haunch of Venison Partners Limited v. Her Majesty’s Commissioners of Revenueand Custom, (2008) London Tribunal Centre (Eng.), http://www.taxbar.com/Haunch_of_Venison_Trib.pdf.100. Value Added Taxis the UK name for general sales tax, which applies throughoutthe European Union at different rates determined by each EU Member State.101. Bill Viola (1951–) was born in Queens, New York. He is an internationallyrenowned contemporary artist whose work employs audio-visual digital technology.Viola is a leading practitioner of Video Art, which uses moving images and/orsound as components that are often, but not always, installed in art galleries and museums.Recent auction sales have realised between US$55,000 and US$600,000.102. Dan Flavin (1933–1996) was born in Jamaica, New York. He is an internationallyrenowned modern artist whose work usually employed fluorescent lighttubes/bulbs/fittings to form sculptural objects, or as part of an art installation. TheDan Flavin Art Institute in Bridgehampton, New York, exhibits an extensive permanentcollection of his works. Recent auction sales have realised between US$170,000and US$1,700,000.103. Classification 9703 of the Combined Nomenclature in Council Regulation2658/87/ 1987 O.J. (L 256) (EEC).

134 J. INT’L MEDIA &ENTERTAINMENT LAW VOL. 4,NO. 2during the Modern Art era to embrace the materials at issue. And thetribunal specifically held that it would be “absurd to classify any of theworks as components ignoring the fact that the components togethermake a work of art”. Undoubtedly the tribunal also had strong regardto the reasoning of the judge in the Brâncuşi judgment.And there the matter rested, until in September 2010 EuropeanCommission Regulation 731/2010 came into force, specifically reversingthe London Tribunal’s judgment on Viola’s and Flavin’s works asart, and classifying them as ‘components’ for which no reduced VATimport rate is allowed. In relation to Viola’s work, this curious Regulationstates: ‘classification as a sculpture is excluded, as none of theindividual components or the whole installation, when assembled, canbe considered as a sculpture . . . It is the content recorded on the DVDwhich, together with the components of the installation, provides forthe “modern art” . . . Consequently, the components of the installationare to be classified separately . . . the video reproducing apparatus . . .the loudspeakers. . . . the projectors . . . and the DVDs.’ As for Flavin’slight works, the Regulation equally curiously states: ‘classification as asculpture is excluded, as it is not the installation that constitutes a“work of art” but the result of the operations (the light effect) carriedout by it. Classification . . . as a collector’s piece of historical interest . . .is [also] excluded ...Ithasthecharacteristics of lighting fittings andthe product is therefore to be classified as wall lighting fittings.’Why did the European Commission 104 go to such elaborate lengthsto overturn the judicial decision of a London VAT Tribunal in relationto a relatively small amount of contested UK/EU import tax (£36,000)in relation to artworks? Pierre Valentin, the art lawyer who representedHaunch of Venison at the tribunal, recently used Freedom of Informationlegislation to obtain copies of relevant European Commission recordsto discover why. He explained 105 : “within weeks of the London[Tribunal] decision, the issue was on the agenda of the European Commission’sCustoms Code Committee in Brussels. Several MemberStates reported that their tax authorities had considered the issue ofvideo art previously. The meeting was told that in two Members States(the UK and the Netherlands), a VAT Tribunal had held that video installationsshould be classified as sculptures. By April 2009, without104. The European Commission is the executive arm of the European Union, ofteninformally called the “European Government”. It has legislative powers to make Regulations,which are direct forms of law that have binding legal effect on all EU MemberStates.105. In a feature article in The Art Newspaper, Jan. 2011.

WHAT IS ART? 135apparent further consultation, the Committee decided that ‘a draft regulationwill be prepared for a future meeting. This will overturn theUK [and Dutch] National Court decisions’. This eventually becameEU Regulation 731/2010, which Valentin argues is “a patently absurdpiece of legislation. Adopted behind closed doors, without an apparentunderstanding of the subject matter, it reverses two national judicialdecisions that both ruled that video installations should be classifiedas art. No judge had decided the issue in any other way. There wasno need for the Regulation, which is contrary to the jurisprudenceof the European Court of Justice”. 106 Because this Regulation only addressesthe specific Viola and Flavin ‘components’ imported into theEU by Haunch of Venison, it remains moot whether it embraces importationinto the EU of component parts of all disassembled artworks.V. Star WarsLet us finally consider the latest landmark judgment on “What isart?” Handed down by the UK Supreme Court in July 2011, and popularlyknown as the Star Wars case, it was brought by George Lucasand his companies claiming copyright infringement against a UKdesigner-maker named Andrew Ainsworth. There was a sequence offour judicial decisions; given by:• Federal US Court in 2006: a default judgment for Lucas 107• UK High Court in 2010: finding for Ainsworth 108• UK Court of Appeal in 2010: finding for Ainsworth 109• UK Supreme Court in 2011: finding for Ainsworth. 110The UK Supreme Court was required to determine the legal meaningof sculpture in UK copyright law. The significance of this decisionis far-reaching: not only because UK’s judicial system is based uponthe common law principle of precedent, whereby this decision andits rationale should be followed by all UK courts trying the same ora similar legal issue; but also because UK Supreme Court judgmentsare respected by, and potentially influential upon, courts of record incommon law jurisdictions around the world. Any such influence willdepend upon, and be directly proportionate to, the nature and quality106. Id..107. Lucasfilm Ltd v. Shepperton Design Studios Ltd., No. CV05-3434 RGKMANX, 2006 WL 6672241 (C.D. Cal. Sept. 26, 2006).108. Lucasfilm Ltd & Ors v Ainsworth & Anor, [2008] EWHC 1878 (Ch), (Eng.and Wales High, Chanc.)109. [2009] EWCA Civ 1328, [2010] Ch 503110. Lucasfilm Ltd and others v. Ainsworth and another, [2011] UKSC 39

136 J. INT’L MEDIA &ENTERTAINMENT LAW VOL. 4,NO. 2of reasoning in the judgment and whether it offers an arguably persuasiveauthoritative and contemporary yardstick about the legal meaningof art—not only sculpture—in our contemporary culture.The case concerns the 1977 movie Star Wars Episode IV: A NewHope. The first lawsuit was filed in 2005 by George Lucas and hisStar Wars merchandising companies against an English props maker,Andrew Ainsworth, and his company. In 2004 Ainsworth had reproducedreplicas of the white Imperial Stormtrooper uniforms used inthe film, which he had sold in the US. Lucasfilm claimed ownershipof copyrights in the uniforms, and violation thereof by Ainsworth,and was granted a default judgment by US District Court, Central Districtof California, in September 2006 for $20 million including $10 milliontriple damages under the Lanham Act.Ainsworth lived in the UK and had no assets in the U.S. Lucastherefore filed lawsuits in the UK to enforce his US default judgementin the UK; further or alternatively, to (re-)claim violation by Ainsworthof US copyrights in the Imperial Stormtrooper uniforms. In2008 London’s High Court of Justice tried and rejected the claims.Lucas appealed to the Court of Appeal of England and Wales, whichin 2009 effectively supported the High Court’s decisions. Lucas then appealedto the UK Supreme Court, and that court’s reasoning in supportof its decision about the legal meaning of “sculpture” is both illuminatingand instructive, and merits detailed consideration.As the highest UK appellate court, the UK Supreme Court’s focuswas on copyright legislation, its interpretation and application by thetwo lower courts, and whether there had been judicial errors. The findingsof fact in the first trial court were not a final appeal issue. Thegravamen of the final appeal was the intellectual property rights in“various artefacts” made for use in the film, of which the ImperialStormtrooper helmet was agreed to be the paradigm that would be decisiveof the appeal as a whole. The helmet was helpfully described bythe first trial judge as follows: “One of the most abiding images in thefilm was that of the Imperial Stormtroopers. These were soldiers cladin white armour, including a white helmet which left no part of theface uncovered . . . The purpose of the helmet was that it was to beworn as an item of costume in a film, to identify a character, but inaddition to portray something about that character—its allegiance,force, menace, purpose and, to some extent, probably its anonymity.It was a mixture of costume and prop.” 111111. [2008] EWHC 1878 (Ch), [2009] FSR 103, paras [2] and [121].

WHAT IS ART? 137Lucas conceived the Star Wars screenplay. Between 1974 and 1976he commissioned drawings and paintings visualising the Imperial Stormtroopersfrom a UK artist, Ralph McQuarrie; and three-dimensional claymodels from a freelance a UK prop-maker, Nick Pemberton. The appellateRespondent, Ainsworth, specialised in making vacuum plasticmoulds, and Lucas commissioned him to make prototypes and then50 helmets that were used in shooting the film—which was made atElstree studios, also in the UK. The Appellants were companiesowned by Lucas, known collectively as Lucasfilm, which owned thecopyrights in the artefacts created for the film. Over subsequent decadesLucasfilm developed a lucrative business licensing the merchandisingof miniature models of Star Wars characters, including the ImperialStormtroopers and their armour. It was agreed by the parties thatAinsworth had “used his original tools to make versions of the ImperialStormtrooper helmet and armour, and other artefacts . . . for sale tothe public.” Ainsworth’s overall sales in the U.S. had ranged from between$8,000 and $30,000.Why was the key issue before the UK Supreme Court whether thehelmet was a ‘sculpture’ within the meaning UK copyright legislation?UK copyright law was enacted by the Copyright Designs and PatentsAct 1988 (the 1988 Act). Section 1(1) (a) provides that copyright subsistsin original literary, dramatic, musical or artistic works. Section 4(1)defines “artistic work”, and includes “a graphic work, photograph,sculpture or collage, irrespective of artistic quality”. Section 4(2) providesthat “sculpture” includes “a cast or model made for purposes ofsculpture”.The 1988 Act also specifies a range of “acts permitted in relation tocopyright works” including “fair dealing”. In particular, Section 51(1)provides a defence to copyright infringement in relation to design documentsand models: “it is not an infringement of any copyright in adesign document or model recording or embodying a design for anythingother than an artistic work or a typeface to make an article to thedesign or to copy an article made to the design” (my emphasis). Andby Section 51(2): “nor is it an infringement of the copyright to issue tothe public, or include in a film or communicate to the public, anythingthe making of which was, by virtue of subsection 51(1), not an infringementof that copyright”. In other words, if the Lucasfilm’s designsfor Imperial Stormtrooper helmets/uniforms were “artistic works” withinthe meaning of the Section 1(1) (a) of the1988 Act, Ainsworth had infringedLucasfilm’s copyrights; Lucasfilm argued that they were, andin particular that they were “sculpture” as defined by Section 4(2). Ains-

138 J. INT’L MEDIA &ENTERTAINMENT LAW VOL. 4,NO. 2worth argued the reverse; and that he had not infringed Lucasfilm’scopyrights by virtue of the acts permitted by Section 51(1) and (2).Moreover, Lucasfilm had a further legislative hurdle to overcome,which also depended on whether the helmets/uniforms were “artisticworks”, and “sculptures” in particular. Section 52 of the 1988 Act providesthat where an artistic work has been exploited (by or with thelicence of the copyright owner) through industrially producing andmarketing copies (of that artistic work) in the United Kingdom or elsewhere,copyright in that work is effectively unenforceable 25 yearsfrom the end of the calendar year in which such articles are first marketed.In other words, Lucasfilm’s merchandising of miniature modelsof Star Wars characters (including the Imperial Stormtroopers andtheir armour) for 25 years (from, say, 1978 to 2003) would on theface of it mean that Ainsworth could claim his copying and merchandisingof the helmets from 2004 was authorised by Section 52 of the1988 Act. However, there is one more twist: legislation supplementaryto the 1988 Act 112 provides an exception to the operation of Section 52in the case of “works of sculpture, other than casts or models used orintended to be used as models or patterns to be multiplied by any industrialprocess.” 113 This twist would operate in Lucasfilm’s favour ifits helmets/uniforms were, yet again, “sculpture” within the meaningof the 1988 Act. And so his legal team argued.How did the UK Supreme Court determine whether the helmet wasa “sculpture” within the meaning UK copyright legislation? It firstconsidered previous relevant judgments of courts in England and theBritish Commonwealth that had determined the legal meaning of“sculpture”. A central issue that emerged from this review was “the relativesignificance of the functional and the artistic”—in other words,whether or not a work was intended by the artist to be a utilitarian object(as was contended by US Customs in the Brancusi 114 trial). Referencewas made to a landmark decision by New Zealand’s Court of Appealin 1985 115 , which construed provisions of the Copyright Act 1962 of112. The Copyright (Industrial Process and Excluded Articles) (No 2) Order 1989(SI 1989/1070).113. Similar special provisions in relation to industrially produced and marketedthree-dimensional artefacts operate in copyright laws in many other territorial jurisdictions,and are intended by legislators to remove such designs from the lengthy and extensiveprotection given to the “fine arts.” Although copyright protection is limitedand/or removed from such artefacts, they are usually protected—though for a farshorter period—under national and international design registration laws.114. Brancusi, 54 Treas. Dec. Cust. 428 (Cust. Ct. 1928).115. Wham-O Manufacturing Co v Lincoln Industries Ltd [1985] RPC 127, [1984]1 NZLR 641.

WHAT IS ART? 139New Zealand that were similar to those of UK’s 1988 Act. The courtdetermined that Frisbees were not sculptures, because “It seems to usinappropriate to regard utilitarian objects such as plastic flying discs,manufactured as toys, by an injection moulding process, as items ofsculpture for the purposes of [New Zealand’s] Copyright Act.”A similar case was tried in England in 1995 116 to decide whetherscalloped shapes of die-cast moulds of heating plates for sandwichtoasters were in fact casts or moulds for “sculpture”. The trial judgedetermined that moulds were “sculpture” within the meaning of the1988 Act, but the Court of Appeal and the UK Supreme Court inour Star Wars trials determined they were not; and in doing so drewupon the Concise Oxford Dictionary’s definition of “sculpture”: “Artof forming representations of objects etc or abstract designs in theround or in relief by chiselling stone, carving wood, modelling clay,casting metal, or similar processes; a work of sculpture.” These courtsespecially stressed the significance of the first word, “Art”, in the dictionarydefinition. Moreover, the UK Supreme went further, determiningthat “No ordinary citizen—indeed no ordinary lawyer—would regarda sandwich toaster or any part of it as a work of sculpture—evenif it did produce ‘scalloped’ sandwiches. So why should a copyrightlawyer take a different view? A total or almost total emphasis onthe manner of creation . . . produces a result which offends commonsense and in our view is wrong. There must be some element of artisticexpression however unsuccessful.”A more recent English case came close, in the UK Supreme Court’sjudgment, to being “the only suggested definition or near-definitionthat has not attracted adverse comment from any quarter” 117 . It concerneda claim to artistic copyright in moulds used for making doublebarrelledhypodermic-type syringes, which claim the court rejected;and observed “The law has been bedevilled by attempts to widenout the field covered by the Copyright Acts. It is not possible to saywith precision what is and what is not sculpture, but I think MrMeade was close to the heart of the issue. He suggested that a sculptureis a three-dimensional work made by an artist’s hand. It appears tome that there is no reason why the word ‘sculpture’ in the [UK’s] 1988Act should be extended far beyond the meaning which that word has toordinary members of the public.” 118116. Breville Europe Plc v Thorn EMI Domestic Appliances Ltd [1995] FSR 77.117. “Any quarter” presumably means any advocate representing any party beforethe UK Supreme Court.118. Metix (UK) Ltd v G H Maughan (Plastics) Ltd [1997] FSR 718.

140 J. INT’L MEDIA &ENTERTAINMENT LAW VOL. 4,NO. 2Based upon this review of such judicial authorities, the UK SupremeCourt was persuaded to adopt guidelines on the meaning of “sculpture”within UK copyright legislation that had been handed down bythe High Court Judge in the first Star Wars trial 119 . They are summarisedas follows:• some regard has to be had to the normal use of the word• sculpture can be things going beyond what one would normallyexpect to be art in the sense of the sort of things that onewould expect to find in art galleries• it is inappropriate to stray too far from what would normally beregarded as sculpture• no judgment is to be made about artistic merit• not every three-dimensional representation of a concept can be regardedas a sculpture• the essence of a sculpture is that it should have, as part of its purpose,a visual appeal in the sense that it might be enjoyed for thatpurpose alone, whether or not it might have another purpose aswell. The purpose is that of the creator. An artist (in the realmof the visual arts) creates something because it has visual appealwhich he wishes to be enjoyed as such. He may fail, but that doesnot matter (no judgments are to be made about artistic merit). It isthe underlying purpose that is important.• the fact that the object has some other use does not necessarilydisqualify it from being a sculpture, but it still has to have the intrinsicquality of being intended to be enjoyed as a visual thing—and no intention that it be purely functional.• for example, a pile of bricks, temporarily on display at Tate Modernfor two weeks, is plainly capable of being a sculpture; theidentical pile of bricks dumped at the end of a driveway fortwo weeks preparatory to a building project is equally plainlynot; one asks why there is that difference, and the answer liesin having regard to its intention—one is created by the hand of anartist, for artistic purposes, and the other is created by a builder,for building purposes.The court stressed that “Those factors are guidelines, not rigid requirements.The question: ‘What is a sculpture?’ has some of the elementsabout it of the unanswerable question: ‘What is Art?’ However,119. These guidelines had also been endorsed by the Court of Appeal’s hearing ofthe Star Wars case.

WHAT IS ART? 141they do, in my view, represent what one can extract from the cases,definitions and statutes in order to assist in answering the questionwhether any particular article is a sculpture or not. They are an attemptto extract elements from what plainly are sculptures, to distinguishwhat makes something distinguish what makes something plainlynot a sculpture, and to arrive at some factors which result from thatexercise. I would no more attempt a definition than any of the judgesin the other authorities.”In order to succeed in their appeal, Lucasfilm had contended that theImperial Stormtrooper armour had no practical function at all, and wassculpture, because its purpose was wholly artistic. They argued that“the question of functionality does not arise, because the articles inquestion have no functional purpose whatever. The Stormtroopers’helmets and armour did not exist in order to keep their wearerswarm or decent or to protect them from injury in an inter-planetarywar. Their sole purpose was to make a visual impression on the filmgoer.They are therefore artistic works.” These and related contentionswere rejected by the UK Supreme Court which affirmed the earlier decisionsof the High Court and Court of Appeal, by adopting and quotingthe heart of the decision made by the first trial judge: “It was amixture of costume and prop. But its primary function is utilitarian.While it was intended to express something, that was for utilitarianpurposes. While it has an interest as an object, and while it was intendedto express an idea, it was not conceived, or created, with theintention that it should do so other than as part of character portrayalin the film. That, in my view, does not give it the necessary quality ofartistic creation.”Throughout the five years long forensic contest, Lucas was publiclysupported by fellow Hollywood Directors—including Steven Spielberg,Peter Jackson, James Cameron and John Landau—who, for theLondon trials in particular, publicly expressed concerns that a verdictagainst Lucasfilm posed a significant threat to the UK film industry;because film-makers, they said, would be deterred from using UKprop-makers for fear of copyright infringement. Lucasfilm’s mediacomment on the UK Supreme Court’s final decision was that “We believethe imaginative characters, props, costumes, and other visual assetsthat go into making a film deserve protection in Britain. The UKshould not allow itself to become a safe haven for piracy . . . The verdictrepresented an anomaly of British copyright law under which thecreative and highly artistic works made for use in films . . . may notbe entitled to copyright protection in the UK . . . LucasFilm remains

142 J. INT’L MEDIA &ENTERTAINMENT LAW VOL. 4,NO. 2committed to aggressively protecting its intellectual property rights relatingto Star Wars in the UK and around the globe.” In this particularcontext it is instructive to note the UK Supreme Court’s clearly expressedunderstanding of the artistic nature of film, when it held “ itwas the Star Wars film that was the work of art thatMr. Lucas and his companies created. The helmet was utilitarian inthe sense that it was an element in the process of production of thefilm.”Reflecting on his overall success, Ainsworth said “David can prevailagainst Goliath if his cause is right. If there is a force, then it has beenwith me these past five years.” It appears from this final Star Warsjudgment that authors’ intentions—at the time of creation—is of paramountimportance in determining whether in law their creations areworks of art or utilitarian artefacts.Utilitarian artefacts, including mass produced and retailed articles,are provided with other legal tools for protecting their unauthorisedcommercial exploitation. The Star Wars case invites considerationof the possible use of such legal tools by Lucas and his companies:their concerns were essentially about the economic damage beingdone to their Star Wars marketplace by Ainsworth’s niche retailing operation.Ainsworth traded on four key factors: his being the maker ofthe original Stormtrooper moulds and film props; his unbroken possessionof those original moulds; his willingness to re-use those moulds tomake and sell further copies of those film props. Common to each factorwas his personal link to and use of the Star Wars brand identity.From the Industrial Revolution to date, common law jurisdictionsdeveloped judicial remedies to protect branded goods against interlopersinto their established marketplace stealing their market sharethrough retailing ‘lookalike’ goods. The UK’s courts named such tortiousactivities ‘passing off’: adopting or adapting the brand identityof another trader’s goods to deceive consumers into buying goodsthey (wrongly) believed to be the genuine article. Other jurisdictionsuse the legal term ‘unregistered trademark’ law for such unlawful activities.Many common and civil law jurisdictions have enacted orcodified legislation embracing passing off/unregistered trademarklaws; for example, the USA’s Lanham (Trademark) Act of 1946 proscribescommercial misrepresentation of source or origins of goods. 120Perhaps the evidential burden of proving that Ainsworth used ‘false or120. This is codified at 15 U.S.C. §1051 et seq. (2002).

WHAT IS ART? 143misleading statements’ 121 , when marketing his Star Wars wares, wasconsidered by Lucas’s lawyers to be too forensically problematic forsuch a claim to be pursued—because Ainsworth might have mounteda defence contending that his marketing material stated true factsabout his original involvement with the Star Wars moulds and filmprops.Having chosen to bring suit via the visual art copyright law route,Lucas and his companies required the UK courts to focus on the intellectualproperty framework of fine art. During those trials, a potentiallyrelevant factor to help courts determine ‘what is art?’ does notappear to have been considered: the centuries-old practice of artistsdestroying the means for reproducing their works. Traditionally,sculptors destroy moulds they have made—or commissioned to bemade—for casting multiple copies of their original sculptures; similarly,artists of two-dimensional images score through the metal plates theymade—commissioned their engravers to make—for printing multiplecopies of their original works. In both these ways, artists were notonly destroying the means of unauthorised reproduction of theirworks, but also creating a marketplace for their sale of editions oftheir works—signed and/or numbered and/or limited. Accordingly, itmight have been contended that Lucas’s failure to ensure destructionof the Stormtrooper moulds was an additional factor indicating thathe was not an artist making art, but an artisan making utilitarianartefacts.EnvoiVisual artists have made leaps and bounds—over long, and sometimesrelatively short, periods of time—to transcend the forms andpractices of their predecessors. Whether their creations producegood, bad or indifferent works is for spectators to assess. Instant orrelatively contemporary assessments often result in hasty and illconsideredverdicts. Longer periods of reflection and debate usuallyproduce mature and better considered critical judgements—as Duchampnoted so well: “This becomes even more obvious when posteritygives a final verdict and sometimes rehabilitates forgotten artists.” 122Kubler likewise observes: “Usually the entire range and bearing of [anartist’s] career can be brought into focus only long after death, when121. Id., §43(a).122. Duchamp, supra note 1.

144 J. INT’L MEDIA &ENTERTAINMENT LAW VOL. 4,NO. 2we can place it in relation to preceding and subsequent events. But bythen the shock of the innovation has faded. We may tell ourselves thatthese pictures or buildings once broke with the tradition. But in ourpresent they have entered the tradition as if by simple chronologicaldistance.” 123Legislators inevitably play catch-up with changes in society; themore so when attempting to promulgate laws relating to art. Courtsface difficult challenges when required to apply laws enacted often decadesearlier; the more so when seeking to achieve justice in contemporarycircumstances of a case involving art forms and practices thathave moved far beyond those prevailing at the time of enactment. Acommon judicial approach in such cases has been to avoid makingjudgments about the merits of the content of the work in question, preferringto focus on the forms and practices specified by legislationwheneverpossible.Over the past hundred years innovative art forms and practices havedeveloped rapidly compared with the progress made over the previousfive centuries. Modern and contemporary artists such as Brâncuşi,Boggs, Kelley, Beuys, Flavin and Viola, have posed the same judicialquestion: what is art in law? Judges are not required to be experts inart; they need assistance from trial lawyers versed in art and art history,as well as the law, to present relevant discourses about art forms andpractices in the context of the laws in issue. The Star Wars cases produceda consistent evaluation by all three tiers of UK court, when judgingwhether an artefact was an art form recognised by the law. In theabsence of posterity’s consensual assessment to assist them, each courtfocused on the intentions of authors when creating their works: a refreshinglyenlightened judicial approach.Finally, let us introduce a most interesting adjunct—contemporaryartists who have intentionally embraced current law as a medium fortheir practices. Banksy is the pseudonym or tag of an urban guerrillaartist. 124 He uses the built environment as both his canvas and his galleryto convey to the general public subversive messages against war,capitalism, and the establishment; using satirical images, often withepigrammatic texts. His work can be seen on publicly accessible build-123. KUBLER, supra note 6.124. Born in 1974, Banksy played a leading part in the hip-hop musicians/artistssubculture during the late 1980s and 1990s in his home city of Bristol, England. Heinitially operated as a free-hand street graffiti artist; then increasingly used stencilsto facilitate the swifter execution of work—and avoidance of detection and arrestfor criminal damage or trespass to other people’s property. See STEVE WRIGHT,BANKSY’S BRISTOL: HOME SWEET HOME (2007).

WHAT IS ART? 145ings, walls, and bridges of cities worldwide. 125 In a relatively shorttime Banksy has become an internationally renowned artist. 126 Hecontinues his work as an anonymous street art practitioner: intentionally‘vandalising’ the property of others and risking arrest, criminalprosecution—and public unmasking of his identity. During his career,street art has become an established art form and practice, now widelyrecognised by respected art institutions. 127Christo & Jeanne-Claude 128 use the environment as a gallery, sincetheir first ‘wrapping’ project in 1968–9, covering a section of the coastof Little Bay in Sydney, Australia with 11,000 square yards of syntheticfabric secured by 35 miles of rope. Their projects are self-financed,which raises the inevitable question of how the artists generate incometo support their practice and living costs. They do not create objectsfor sale. The very nature of their creations prevents them from raisingmoney by selling tickets to see the results of their transformations ofthe public environment. Skilful use of intellectual property rights hasbeen one answer to income generation, such as: selling to photographersand film-makers and broadcasters exclusive licences to recordtheir artwork/events; and/or selling their related drawings, collages,works on paper, photographs, film of their events, and the like. An obviousparallel business model is the selling of licences by a rock/popband for exclusive media access to performances, and related merchandising.129 Realisation of their works takes decades, and they in-125. In recent times, Banksy responded to his increasing popularity (and requestsfrom people wanting—somehow—to own one of his works) by making reproductionsof his publicly sited pieces. Some are printed on paper and offered for sale via eBay;others are printed on canvas and sold, more expensively, to selected collectors. Hisworks are now traded at major international auction houses for scores of thousandsof dollars. In 2007 Sotheby’s, London achieved £96,000 for Ballerina With ActionMan Parts and £72,000 for Glory; and Bonham’s London achieved £288,000 forSpace Girl and Bird. See http://www.banksy.co.uk/126. In 2011 Banksy’s first film, Exit Through the Gift Shop, was nominated by theAmerican Academy of Motion Picture Arts and Sciences for the Best DocumentaryAcademy Award. See http://www.banksyfilm.com/127. In 2008 London’s Tate Modern was one of the first major public museums tomount a display of street art, commissioning new works from “six internationally acclaimedartists whose work is intricately linked to the urban environment: Blu fromBologna, Italy; the artist collective Faile from New York; JR from Paris, France;Nunca and Os Gêmeos, both from São Paulo, Brazil and Sixeart from Barcelona,Spain.” See http://www.tate.org.uk/whats-on/tate-modern/exhibition/street-art128. Christo Vladimirov Javacheff (1935–) Bulgarian; Jeanne-Claude Denat deGuillebon (1935–2009) French,married and lived in New York City from 1964.129. Other examples: in 1978 they erected a fabric fence across 24 miles of Californiaranch land, Running Fence; in 1995 they wrapped the Reichstag at Berlin, Germany,in polypropylene fabric covered with silvery aluminium, Wrapped Reichstag;in 1983 they surrounded eleven islands in Miami’s Biscayne Bay with pink polypropylenefloating fabric, Surrounded Islands; in 1985 they wrapped the Pont-Neuf in

146 J. INT’L MEDIA &ENTERTAINMENT LAW VOL. 4,NO. 2tentionally set themselves huge challenges: technical, financial, managerial,bureaucratic—and legal. Each work is effectively a legal andbusiness obstacle course; artwork that intentionally embraces the lawas a tool for its creation. 130Carey Young’s 131 artworks during the last decade, often involving ateam of specialist lawyers, have addressed and subverted the law,legal concepts and language. For example: Terms and Conditions,2004; 132 Consideration, 2004–5. 133 Mutual Release, 2008, is arguablyher most ambitious ‘artlaw’ work to date: it poses the question “Canthe legal contract be a form of art?” through a series of six works“which invite the viewer to enter into, or be privy to contractual relationshipsbased on viewing, owning and collecting art.” 134 In theseworks Young uses the law as an artistic medium, inviting the spectatortoexperience“theotherwiseabstractspaceofthecontract...andfurther develops her interest in both the performative and the conceptualdimension of the law to explore its limits and to destabilise itslanguage.” 135Paris, France, with sand-coloured polyamide fabric, The Pont Neuf, Wrapped; in 2005they installed 7,503 16 feet high gates of saffron coloured fabric on paths in CentralPark, New York City, The Gates, Central Park, New York, 1979–2005.130. “I am an artist, and I have to have courage . . . Do you know that I don’t haveany artworks that exist? They all go away when they’re finished. Only the preparatorydrawings and collages are left, giving my works an almost legendary character. I thinkit takes much greater courage to create things to be gone than to create things that willremain.” Christo quoted in MARK GETLEIN, LIVING WITH ART (2006).131. Born in Lusaka, Zambia in 1970, she is based in London. Young’s artworksencompass a wide range of mediums including video, photography, digital mediaand text. Her works have been acquired by major public collections: the Centre Pompidou,Paris, France; Arts Council England; and Tate, London.132. “A short video which features a be-suited female presenter speaking to camerain a welcoming tone whilst standing in an idyllic agricultural landscape, replete withreferences to the painterly landscape tradition. Her speech appears to discuss the “site”but the text is actually a composite of disclaimers from corporate websites. In the ruralsetting, the speech seems both absurd and curiously apt.” See http://www.careyyoung.com/works.133. An exhibition of mixed media works that “featured a series of legally-enforceablecontracts between artist and viewer. Created in conjunction with a legal team, the text,video and performative works entice the viewer into agreements that explore notionsof individual autonomy, freedom of speech and the social contract. Engaging participantsin a series of contractual relationships, Young dissects the viewer’s experienceof the exhibition, from accepting the exhibition invitation, to entering and movingaround the exhibition space. With legally-trained executives increasinglyrunning movie studios, news agencies and universities, Consideration interrogatesthe legal ‘lock down’ of contemporary cultural life and develops Young’s interestin legal structures, language and the performative.” See http://www.careyyoung.com/works.134. See http://www.careyyoung.com/works.135. Id.

WHAT IS ART? 147“What is art?” will undoubtedly remain a quintessential unanswerablequestion. But, as we have seen, the law has frequently been requiredto address exactly this issue. The results are as interestingand enigmatic as the question; and will continue to involve the interfacebetween and reconciliation of two almost diametrically opposeddisciplines.