What is Art? - Southwestern Law School

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140 J. INT’L MEDIA &ENTERTAINMENT LAW VOL. 4,NO. 2Based upon this review of such judicial authorities, the UK SupremeCourt was persuaded to adopt guidelines on the meaning of “sculpture”within UK copyright legislation that had been handed down bythe High Court Judge in the first Star Wars trial 119 . They are summarisedas follows:• some regard has to be had to the normal use of the word• sculpture can be things going beyond what one would normallyexpect to be art in the sense of the sort of things that onewould expect to find in art galleries• it is inappropriate to stray too far from what would normally beregarded as sculpture• no judgment is to be made about artistic merit• not every three-dimensional representation of a concept can be regardedas a sculpture• the essence of a sculpture is that it should have, as part of its purpose,a visual appeal in the sense that it might be enjoyed for thatpurpose alone, whether or not it might have another purpose aswell. The purpose is that of the creator. An artist (in the realmof the visual arts) creates something because it has visual appealwhich he wishes to be enjoyed as such. He may fail, but that doesnot matter (no judgments are to be made about artistic merit). It isthe underlying purpose that is important.• the fact that the object has some other use does not necessarilydisqualify it from being a sculpture, but it still has to have the intrinsicquality of being intended to be enjoyed as a visual thing—and no intention that it be purely functional.• for example, a pile of bricks, temporarily on display at Tate Modernfor two weeks, is plainly capable of being a sculpture; theidentical pile of bricks dumped at the end of a driveway fortwo weeks preparatory to a building project is equally plainlynot; one asks why there is that difference, and the answer liesin having regard to its intention—one is created by the hand of anartist, for artistic purposes, and the other is created by a builder,for building purposes.The court stressed that “Those factors are guidelines, not rigid requirements.The question: ‘What is a sculpture?’ has some of the elementsabout it of the unanswerable question: ‘What is Art?’ However,119. These guidelines had also been endorsed by the Court of Appeal’s hearing ofthe Star Wars case.
WHAT IS ART? 141they do, in my view, represent what one can extract from the cases,definitions and statutes in order to assist in answering the questionwhether any particular article is a sculpture or not. They are an attemptto extract elements from what plainly are sculptures, to distinguishwhat makes something distinguish what makes something plainlynot a sculpture, and to arrive at some factors which result from thatexercise. I would no more attempt a definition than any of the judgesin the other authorities.”In order to succeed in their appeal, Lucasfilm had contended that theImperial Stormtrooper armour had no practical function at all, and wassculpture, because its purpose was wholly artistic. They argued that“the question of functionality does not arise, because the articles inquestion have no functional purpose whatever. The Stormtroopers’helmets and armour did not exist in order to keep their wearerswarm or decent or to protect them from injury in an inter-planetarywar. Their sole purpose was to make a visual impression on the filmgoer.They are therefore artistic works.” These and related contentionswere rejected by the UK Supreme Court which affirmed the earlier decisionsof the High Court and Court of Appeal, by adopting and quotingthe heart of the decision made by the first trial judge: “It was amixture of costume and prop. But its primary function is utilitarian.While it was intended to express something, that was for utilitarianpurposes. While it has an interest as an object, and while it was intendedto express an idea, it was not conceived, or created, with theintention that it should do so other than as part of character portrayalin the film. That, in my view, does not give it the necessary quality ofartistic creation.”Throughout the five years long forensic contest, Lucas was publiclysupported by fellow Hollywood Directors—including Steven Spielberg,Peter Jackson, James Cameron and John Landau—who, for theLondon trials in particular, publicly expressed concerns that a verdictagainst Lucasfilm posed a significant threat to the UK film industry;because film-makers, they said, would be deterred from using UKprop-makers for fear of copyright infringement. Lucasfilm’s mediacomment on the UK Supreme Court’s final decision was that “We believethe imaginative characters, props, costumes, and other visual assetsthat go into making a film deserve protection in Britain. The UKshould not allow itself to become a safe haven for piracy . . . The verdictrepresented an anomaly of British copyright law under which thecreative and highly artistic works made for use in films . . . may notbe entitled to copyright protection in the UK . . . LucasFilm remains
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