What is Art? - Southwestern Law School

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.