What is Art? - Southwestern Law School

144 J. INT’L MEDIA &ENTERTAINMENT LAW VOL. 4,NO. 2we can place it in relation to preceding and subsequent events. But bythen the shock of the innovation has faded. We may tell ourselves thatthese pictures or buildings once broke with the tradition. But in ourpresent they have entered the tradition as if by simple chronologicaldistance.” 123Legislators inevitably play catch-up with changes in society; themore so when attempting to promulgate laws relating to art. Courtsface difficult challenges when required to apply laws enacted often decadesearlier; the more so when seeking to achieve justice in contemporarycircumstances of a case involving art forms and practices thathave moved far beyond those prevailing at the time of enactment. Acommon judicial approach in such cases has been to avoid makingjudgments about the merits of the content of the work in question, preferringto focus on the forms and practices specified by legislationwheneverpossible.Over the past hundred years innovative art forms and practices havedeveloped rapidly compared with the progress made over the previousfive centuries. Modern and contemporary artists such as Brâncuşi,Boggs, Kelley, Beuys, Flavin and Viola, have posed the same judicialquestion: what is art in law? Judges are not required to be experts inart; they need assistance from trial lawyers versed in art and art history,as well as the law, to present relevant discourses about art forms andpractices in the context of the laws in issue. The Star Wars cases produceda consistent evaluation by all three tiers of UK court, when judgingwhether an artefact was an art form recognised by the law. In theabsence of posterity’s consensual assessment to assist them, each courtfocused on the intentions of authors when creating their works: a refreshinglyenlightened judicial approach.Finally, let us introduce a most interesting adjunct—contemporaryartists who have intentionally embraced current law as a medium fortheir practices. Banksy is the pseudonym or tag of an urban guerrillaartist. 124 He uses the built environment as both his canvas and his galleryto convey to the general public subversive messages against war,capitalism, and the establishment; using satirical images, often withepigrammatic texts. His work can be seen on publicly accessible build-123. KUBLER, supra note 6.124. Born in 1974, Banksy played a leading part in the hip-hop musicians/artistssubculture during the late 1980s and 1990s in his home city of Bristol, England. Heinitially operated as a free-hand street graffiti artist; then increasingly used stencilsto facilitate the swifter execution of work—and avoidance of detection and arrestfor criminal damage or trespass to other people’s property. See STEVE WRIGHT,BANKSY’S BRISTOL: HOME SWEET HOME (2007).