What is Art? - Southwestern Law School

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.