What is Art? - Southwestern Law School

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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).
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