What is art? And should courts of law decide?

Posted on: February 28, 2017 by

In Yasmina Reza’s 1994 play ‘Art‘, three male friends spend much time discussing the question, ‘What is art?’ The reason is that one of the characters, Serge, has bought a work from a popular contemporary artist that is more or less just a white canvas. More or less, because there is some debate as to whether other colours can be visible and, indeed, if there are parallel lines (white or off-white) running along the canvas. Serge is proud of his acquisition; his friend Marc, who prefers representational art – anything Flemish – lambasts him to no end: this could not possibly be art. It’s a ruse, a game played on the nouveau riche like Serge. Meanwhile Yvan, younger and more prone to the others’ influence, vacillates. At first he agrees with Marc that spending money on a thing like that is foolish, but then he becomes taken by the ‘painting’, ultimately siding in the debate with Serge.

In the end, we never get to find out if the painting is ‘art’ after all. It’s noteworthy that playwright Reza included inverted commas around the very word in the title. It’s as if even she is playing a joke on the characters and even, to some extent, on her audience. What is art? Or more specifically, what is ‘art‘?

Constantin Brancusi’s Bird in Space (L’Oiseau dans l’espace), 1923

But it isn’t simply characters in popular French plays who get to decide. There have been times – more times than one might think – in which a very particular professional person has had to decide that question. Namely, a judge. This has occurred at moments when a legal issue was being tried and the judge was called on to decide whether a particular thing was art or not.

The primordial case in this vein involved Constantin Brancusi’s 1923 sculpture, Bird in Space. In 1926, the modernist piece was brought by steamship from Paris to New York. The US Customs agent considered the work to be a ‘manufactured good’ and so imposed a tariff of 40% of the object’s value (works of sculpture, by contrast, attracted a 0% tariff at the time). The matter went before a Federal Judge who had to decide whether the item could be considered an original work of art. Luckily, for the progress of modern art in America, he found that it could. He was willing to expand the traditional boundaries of what a sculpture could be. This fascinating case has been commented on a number of times over the years, from a book by French legal philosopher Bernard Edelman to the contributions in Daniel McClean’s useful tome, The Trials of Art.

And, more recently, it was the UK’s Supreme Court that had to come down on a question involving a so-called artistic work. In that case, Lucasfilm, makers of the Star Wars films, had sued a British manufacturer who was building and selling replicas of the famous white stormtrooper costume. The claim under copyright law was grounded on the premise that the stormtrooper helmet was protected as an ‘artistic work’ and , in particular, as a sculpture. Here is what the trial judge had said of the matter, in a passage largely approved by the Supreme Court:

A pile of bricks, temporarily on display at the Tate Modern for 2 weeks, is plainly capable of being a sculpture.  The identical pile of bricks dumped at the end of my driveway for 2 weeks preparatory to a building project is equally plainly not.  One asks why there is that difference, and the answer lies, in my view, in having regard to its purpose.  One is created by the hand of an artist, for artistic purposes, and the other is created by a builder, for building purposes. (at para 118)

The Star Wars stormtrooper helmet at the centre of the Lucasfilm case

The helmet, not having been made by the ‘hand of an artist’, for artistic purposes, was not a sculpture and could not qualify for copyright protection as an ‘artistic work’. The helmet was created for the sole purpose of serving as a prop in a film. It wasn’t made to be appreciated as an aesthetic piece, nor to sit on a plinth in a museum. It could therefore not benefit from the protection of copyright law. Seems logical, does it not? Why should routine objects – utilitarian objects – have the benefit of legal protection in the same manner as great works of art? The answer, though perhaps intuitive, can at times be hard to justify.

And so we return to our friends from the play: Serge, the spendthrift who bought the painting, Marc, the cynical traditionalist, and Yvan, the undecided voter. They debate and argue and nearly come to blows on this seemingly simple question, ‘What is art?’ In the end, no position is really vindicated. It is left to the audience – to all of us – to decide. The difference in a legal situation is that the final decision does have to be made. It is not enough, as in drama (or any art form, really), for the answer to be deferred or hinted at. No, in the end, judges will have to make a final decision on something as complex, as fleeting, as the meaning of art.

The play ‘Art’ by Yasmina Reza was performed at the Old Vic in London from 10 December 2016 to 18 February 2017.