Art in the Law

Leonardo, Vol. 14, pp. 51-56 Pergamon Press, 1981. Printed in Great Britain. ART IN THE LAW* Peter H. Karlen** I. INTRODUCTION The problem of defining art has been a perennial one for philosophers and artists. In recent years with the development of new types of artistic productions the older definitions have been cast aside since they have not been able to absorb the new content [1]. While the philosophic debate has gone on, legislators, judges and civil servants have been confronted with many of the same problems in aesthetics faced by philosophers and artists and have attained their own answers, often with surprising results. The legal answers to limiting the scope of art were obtained by enacting and interpreting laws relating to 'art', 'artists' and 'works of art'. Naturally the legal discourse is on a lower level of aesthetic sophistication; instead of the philosophers' references to the life and work of Shakespeare, Mozart, Goethe, Balzac, Van Gogh, etc., the legal discussion concerns the creations and transactions of entities such as Restawile Upholstery Ltd, Ladbroke (Football ) Ltd, and Spicer's Dress Designs [2]. Also the legal decisions in most cases do not concern true works of art but are confined to mundane, commercial items such as furniture, clothing, and other mass-produced articles. Nevertheless, the legal answers, if not completely satisfactory for philosophers, should be of interest and value to philosophers, and are vital to creative artists. The legal answers are important because the legal decision-making process is in direct, everyday contact with the world of art, and thus the legal decision reflects a contemporary social assessment of problems in art. The task of this article is to outline how the law has defined art and answered problems in aesthetics. The non-lawyer will be on familiar ground because many of the problems faced by the law are virtually the same as those faced by philosophers. Besides outlining the legal answers, the article will assess the limitations of legal incursions into aesthetics. II. WHY THE LAW MAKES DECISIONS ABOUT ART When legislators realised that legal intervention was necessary to promote production of artistic works and preserve the cultural property of the nation, statutes were adopted to give special protection to art. The first copyright legislation was enacted in the eighteenth century, but the bulk of art-related legislation was enacted in the latter part of the nineteenth century and in the twentieth century. Modern legislation in the United Kingdom affecting the arts was enacted in several areas including laws on capital transfer tax, copyright, crime, customs and excise duties, estate duty, income tax, museums and galleries, purchase tax, and scientific and literary societies [3]. These enactments not only span several areas of law but provide benefits to existing productions at many levels. Some statutes protect 'works of art' while others provide benefits to 'artistic works', 'works of artistic craftsmanship', 'objects' or 'things of artistic interest', 'ornaments', and 'designs'. A few statutes provide direct benefits to 'art' and 'artists'. Although the law expresses itself with many art-related terms, its •Abridged version of Legal Aesthetics appearing in Brit. J. Aesth. 19, 195(1979), Published with permission. ••Attorney at Law, 110 West CSt., Suite 714, San Diego, CA 92101, U.S.A. concern for art is basically orientated toward the 'work of art' or 'object of artistic interest', thus, in effect, adopting a commodity approach to art. 'Art' as an activity or 'artists' as creators are largely ignored by the statutes. Thus if one is to define art through legal eyes, one must place emphasis on the reified version of art, the work of art. The aesthetic problems under the statutes can arise when an individual who has an interest in what he believes to be an artistic production seeks to gain protection under one of the statutes. If there is opposition the opposing party may argue that the production does not have the traits of the artistic production called for under the statute. Usually this happens when the article is of poor artistic quality, lacks originality, possesses a commercial character, or is not the product of a considerable amount of skill or labour. In analysing whether an article is a...