What is Art? - Southwestern Law School

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134 J. INT’L MEDIA &ENTERTAINMENT LAW VOL. 4,NO. 2during the Modern Art era to embrace the materials at issue. And thetribunal specifically held that it would be “absurd to classify any of theworks as components ignoring the fact that the components togethermake a work of art”. Undoubtedly the tribunal also had strong regardto the reasoning of the judge in the Brâncuşi judgment.And there the matter rested, until in September 2010 EuropeanCommission Regulation 731/2010 came into force, specifically reversingthe London Tribunal’s judgment on Viola’s and Flavin’s works asart, and classifying them as ‘components’ for which no reduced VATimport rate is allowed. In relation to Viola’s work, this curious Regulationstates: ‘classification as a sculpture is excluded, as none of theindividual components or the whole installation, when assembled, canbe considered as a sculpture . . . It is the content recorded on the DVDwhich, together with the components of the installation, provides forthe “modern art” . . . Consequently, the components of the installationare to be classified separately . . . the video reproducing apparatus . . .the loudspeakers. . . . the projectors . . . and the DVDs.’ As for Flavin’slight works, the Regulation equally curiously states: ‘classification as asculpture is excluded, as it is not the installation that constitutes a“work of art” but the result of the operations (the light effect) carriedout by it. Classification . . . as a collector’s piece of historical interest . . .is [also] excluded ...Ithasthecharacteristics of lighting fittings andthe product is therefore to be classified as wall lighting fittings.’Why did the European Commission 104 go to such elaborate lengthsto overturn the judicial decision of a London VAT Tribunal in relationto a relatively small amount of contested UK/EU import tax (£36,000)in relation to artworks? Pierre Valentin, the art lawyer who representedHaunch of Venison at the tribunal, recently used Freedom of Informationlegislation to obtain copies of relevant European Commission recordsto discover why. He explained 105 : “within weeks of the London[Tribunal] decision, the issue was on the agenda of the European Commission’sCustoms Code Committee in Brussels. Several MemberStates reported that their tax authorities had considered the issue ofvideo art previously. The meeting was told that in two Members States(the UK and the Netherlands), a VAT Tribunal had held that video installationsshould be classified as sculptures. By April 2009, without104. The European Commission is the executive arm of the European Union, ofteninformally called the “European Government”. It has legislative powers to make Regulations,which are direct forms of law that have binding legal effect on all EU MemberStates.105. In a feature article in The Art Newspaper, Jan. 2011.
WHAT IS ART? 135apparent further consultation, the Committee decided that ‘a draft regulationwill be prepared for a future meeting. This will overturn theUK [and Dutch] National Court decisions’. This eventually becameEU Regulation 731/2010, which Valentin argues is “a patently absurdpiece of legislation. Adopted behind closed doors, without an apparentunderstanding of the subject matter, it reverses two national judicialdecisions that both ruled that video installations should be classifiedas art. No judge had decided the issue in any other way. There wasno need for the Regulation, which is contrary to the jurisprudenceof the European Court of Justice”. 106 Because this Regulation only addressesthe specific Viola and Flavin ‘components’ imported into theEU by Haunch of Venison, it remains moot whether it embraces importationinto the EU of component parts of all disassembled artworks.V. Star WarsLet us finally consider the latest landmark judgment on “What isart?” Handed down by the UK Supreme Court in July 2011, and popularlyknown as the Star Wars case, it was brought by George Lucasand his companies claiming copyright infringement against a UKdesigner-maker named Andrew Ainsworth. There was a sequence offour judicial decisions; given by:• Federal US Court in 2006: a default judgment for Lucas 107• UK High Court in 2010: finding for Ainsworth 108• UK Court of Appeal in 2010: finding for Ainsworth 109• UK Supreme Court in 2011: finding for Ainsworth. 110The UK Supreme Court was required to determine the legal meaningof sculpture in UK copyright law. The significance of this decisionis far-reaching: not only because UK’s judicial system is based uponthe common law principle of precedent, whereby this decision andits rationale should be followed by all UK courts trying the same ora similar legal issue; but also because UK Supreme Court judgmentsare respected by, and potentially influential upon, courts of record incommon law jurisdictions around the world. Any such influence willdepend upon, and be directly proportionate to, the nature and quality106. Id..107. Lucasfilm Ltd v. Shepperton Design Studios Ltd., No. CV05-3434 RGKMANX, 2006 WL 6672241 (C.D. Cal. Sept. 26, 2006).108. Lucasfilm Ltd & Ors v Ainsworth & Anor, [2008] EWHC 1878 (Ch), (Eng.and Wales High, Chanc.)109. [2009] EWCA Civ 1328, [2010] Ch 503110. Lucasfilm Ltd and others v. Ainsworth and another, [2011] UKSC 39
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