What is Art? - Southwestern Law School

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142 J. INT’L MEDIA &ENTERTAINMENT LAW VOL. 4,NO. 2committed to aggressively protecting its intellectual property rights relatingto Star Wars in the UK and around the globe.” In this particularcontext it is instructive to note the UK Supreme Court’s clearly expressedunderstanding of the artistic nature of film, when it held “ itwas the Star Wars film that was the work of art thatMr. Lucas and his companies created. The helmet was utilitarian inthe sense that it was an element in the process of production of thefilm.”Reflecting on his overall success, Ainsworth said “David can prevailagainst Goliath if his cause is right. If there is a force, then it has beenwith me these past five years.” It appears from this final Star Warsjudgment that authors’ intentions—at the time of creation—is of paramountimportance in determining whether in law their creations areworks of art or utilitarian artefacts.Utilitarian artefacts, including mass produced and retailed articles,are provided with other legal tools for protecting their unauthorisedcommercial exploitation. The Star Wars case invites considerationof the possible use of such legal tools by Lucas and his companies:their concerns were essentially about the economic damage beingdone to their Star Wars marketplace by Ainsworth’s niche retailing operation.Ainsworth traded on four key factors: his being the maker ofthe original Stormtrooper moulds and film props; his unbroken possessionof those original moulds; his willingness to re-use those moulds tomake and sell further copies of those film props. Common to each factorwas his personal link to and use of the Star Wars brand identity.From the Industrial Revolution to date, common law jurisdictionsdeveloped judicial remedies to protect branded goods against interlopersinto their established marketplace stealing their market sharethrough retailing ‘lookalike’ goods. The UK’s courts named such tortiousactivities ‘passing off’: adopting or adapting the brand identityof another trader’s goods to deceive consumers into buying goodsthey (wrongly) believed to be the genuine article. Other jurisdictionsuse the legal term ‘unregistered trademark’ law for such unlawful activities.Many common and civil law jurisdictions have enacted orcodified legislation embracing passing off/unregistered trademarklaws; for example, the USA’s Lanham (Trademark) Act of 1946 proscribescommercial misrepresentation of source or origins of goods. 120Perhaps the evidential burden of proving that Ainsworth used ‘false or120. This is codified at 15 U.S.C. §1051 et seq. (2002).
WHAT IS ART? 143misleading statements’ 121 , when marketing his Star Wars wares, wasconsidered by Lucas’s lawyers to be too forensically problematic forsuch a claim to be pursued—because Ainsworth might have mounteda defence contending that his marketing material stated true factsabout his original involvement with the Star Wars moulds and filmprops.Having chosen to bring suit via the visual art copyright law route,Lucas and his companies required the UK courts to focus on the intellectualproperty framework of fine art. During those trials, a potentiallyrelevant factor to help courts determine ‘what is art?’ does notappear to have been considered: the centuries-old practice of artistsdestroying the means for reproducing their works. Traditionally,sculptors destroy moulds they have made—or commissioned to bemade—for casting multiple copies of their original sculptures; similarly,artists of two-dimensional images score through the metal plates theymade—commissioned their engravers to make—for printing multiplecopies of their original works. In both these ways, artists were notonly destroying the means of unauthorised reproduction of theirworks, but also creating a marketplace for their sale of editions oftheir works—signed and/or numbered and/or limited. Accordingly, itmight have been contended that Lucas’s failure to ensure destructionof the Stormtrooper moulds was an additional factor indicating thathe was not an artist making art, but an artisan making utilitarianartefacts.EnvoiVisual artists have made leaps and bounds—over long, and sometimesrelatively short, periods of time—to transcend the forms andpractices of their predecessors. Whether their creations producegood, bad or indifferent works is for spectators to assess. Instant orrelatively contemporary assessments often result in hasty and illconsideredverdicts. Longer periods of reflection and debate usuallyproduce mature and better considered critical judgements—as Duchampnoted so well: “This becomes even more obvious when posteritygives a final verdict and sometimes rehabilitates forgotten artists.” 122Kubler likewise observes: “Usually the entire range and bearing of [anartist’s] career can be brought into focus only long after death, when121. Id., §43(a).122. Duchamp, supra note 1.
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