What is Art? - Southwestern Law School

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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).
WHAT IS ART? 145ings, walls, and bridges of cities worldwide. 125 In a relatively shorttime Banksy has become an internationally renowned artist. 126 Hecontinues his work as an anonymous street art practitioner: intentionally‘vandalising’ the property of others and risking arrest, criminalprosecution—and public unmasking of his identity. During his career,street art has become an established art form and practice, now widelyrecognised by respected art institutions. 127Christo & Jeanne-Claude 128 use the environment as a gallery, sincetheir first ‘wrapping’ project in 1968–9, covering a section of the coastof Little Bay in Sydney, Australia with 11,000 square yards of syntheticfabric secured by 35 miles of rope. Their projects are self-financed,which raises the inevitable question of how the artists generate incometo support their practice and living costs. They do not create objectsfor sale. The very nature of their creations prevents them from raisingmoney by selling tickets to see the results of their transformations ofthe public environment. Skilful use of intellectual property rights hasbeen one answer to income generation, such as: selling to photographersand film-makers and broadcasters exclusive licences to recordtheir artwork/events; and/or selling their related drawings, collages,works on paper, photographs, film of their events, and the like. An obviousparallel business model is the selling of licences by a rock/popband for exclusive media access to performances, and related merchandising.129 Realisation of their works takes decades, and they in-125. In recent times, Banksy responded to his increasing popularity (and requestsfrom people wanting—somehow—to own one of his works) by making reproductionsof his publicly sited pieces. Some are printed on paper and offered for sale via eBay;others are printed on canvas and sold, more expensively, to selected collectors. Hisworks are now traded at major international auction houses for scores of thousandsof dollars. In 2007 Sotheby’s, London achieved £96,000 for Ballerina With ActionMan Parts and £72,000 for Glory; and Bonham’s London achieved £288,000 forSpace Girl and Bird. See http://www.banksy.co.uk/126. In 2011 Banksy’s first film, Exit Through the Gift Shop, was nominated by theAmerican Academy of Motion Picture Arts and Sciences for the Best DocumentaryAcademy Award. See http://www.banksyfilm.com/127. In 2008 London’s Tate Modern was one of the first major public museums tomount a display of street art, commissioning new works from “six internationally acclaimedartists whose work is intricately linked to the urban environment: Blu fromBologna, Italy; the artist collective Faile from New York; JR from Paris, France;Nunca and Os Gêmeos, both from São Paulo, Brazil and Sixeart from Barcelona,Spain.” See http://www.tate.org.uk/whats-on/tate-modern/exhibition/street-art128. Christo Vladimirov Javacheff (1935–) Bulgarian; Jeanne-Claude Denat deGuillebon (1935–2009) French,married and lived in New York City from 1964.129. Other examples: in 1978 they erected a fabric fence across 24 miles of Californiaranch land, Running Fence; in 1995 they wrapped the Reichstag at Berlin, Germany,in polypropylene fabric covered with silvery aluminium, Wrapped Reichstag;in 1983 they surrounded eleven islands in Miami’s Biscayne Bay with pink polypropylenefloating fabric, Surrounded Islands; in 1985 they wrapped the Pont-Neuf in
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