What is Art? - Southwestern Law School

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.