What is Art? - Southwestern Law School

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118 J. INT’L MEDIA &ENTERTAINMENT LAW VOL. 4,NO. 2art; illustrations, maps, plans, sketches and three-dimensional worksrelative to geography, topography, architecture or science.” 22 It thenprovides: “It shall, however, be a matter for legislation in the countriesof the Union to prescribe that works in general or any specified categoriesof works shall not be protected unless they have been fixedin some material form.” 23 Whether national copyright laws of BerneConvention countries have been able to implement Berne in suchways that recognise innovative visual art forms developed during thelast 100 years or so, will be explored later; as will difficulties encounteredby courts applying such laws to specific cases.II. Historical PerspectivesArt is no stranger to the courtroom. Western art history is pepperedwith cases where visual art has been the central factual and legal issuefor the court 24 ; and where judges have been required to consider itsrelevance in a legal context—usually, but not always, reluctantly.Two landmark cases will be considered in pursuit of this article’s thesis.1511 Italy: Dürer v. Raimondi 25From around 1501 Dürer 26 made and marketed a series of 19 woodcutprints about the Life of the Virgin. These were of an exceptionallyhigh standard, and attracted the attention of Marcantonio Raimondi(the engraver used by Dürer’s friend and colleague Raphael 27 ) whowas able to engrave, print, and sell multiple copies of them—withoutDürer’s knowledge or consent. Raimondi ignored Dürer’s eventual‘cease and desist’ entreaties (directly and via Raphael), and continuedhis evidently profitable merchandising venture. In 1511 Dürer finallysought a legal remedy from the Senate of the Venetian Republic. 28The facts were not in dispute and, in the absence of any intellectual22. Berne Convention, note 20, supra, art. 2(1).23. Id., art. 2(2).24. For wider contemporary consideration of many more such cases, see LAURIEADAMS, ART ON TRIAL (1976); DANIEL MCCLEAN, THE TRIALS OF ART (2007).25. For a fuller exploration of this case, see PON, L.RAPHAEL, DÜRER &MARCAN-TONIO RAIMONDI: COPYING AND THE ITALIAN RENAISSANCE PRINT (2004).26. Albrecht Dürer (1471–1528) was a German painter, printmaker and engraver:leading artist of the Northern Renaissance. He achieved great success throughout Europe,in large part through his multiple reproduction prints of his own paintings anddrawings.27. Raffaello Sanzio da Urbino (1483–1520) was a progenitor of the Italian HighRenaissance.28. From the 7th century to 1797 it was formally entitled the Most Serene Republicof Venice. In 1511 Venice was one of the leading sea-faring and trading nations in thethen developed world.
WHAT IS ART? 119property rights laws, the Senate exercised its inherent jurisdictionalpowers over trade to allow Raimondi to continue producing and merchandisingDürer’s images; with the proviso that he could not in thefuture include on them Dürer’s unique ‘AD’ signature or brand. 29Not only is this one of the earliest recorded cases in the developmentof copyright laws, it also illustrates the Senate’s difficulty in understandingthe true nature of Dürer’s art (and his legal claim). TheSenate seemingly focused on the innovative and highly technicalskill and labour Raimondi employed in making engraved copies; noton the art. Dürer’s original images were the art; not his original woodcutsor his prints thereof, and not Raimondi’s engraved renditions ofDürer’s original images or his prints thereof. In granting Dürer a remedyin relation to Raimondi’s future use of his “logo”—his brandidentity—the Senate also heralded the development of what becametrademark and other intellectual property laws.1573 Italy: Inquiry of the Venetian Inquisition v. Veronese 30In 1572, at the height of his career, Veronese 31 was commissionedby the monastery of San Giovanni e Paolo in Venice to make a largepainting of The Last Supper to adorn the refectory, to replace an earlierwork by Titian 32 that had been destroyed by fire the previousyear. In 1573 Veronese delivered a very large canvas, 39 feet wideby 17 feet high, on which he had updated the ancient Biblicalscene by placing it in a contemporary Italian palazzo. 33 He had expandedthe traditional gathering of Jesus and his twelve disciplesby adding a large number of curious-looking people, including “buffoons,drunken Germans, dwarfs and other such scurrilities ...ajesterwith a parrot on his wrist . . . a servant who has a nose-bleed from someaccident...armedmendressedinthefashionofGermany,withhalberdsin their hands” 3429.30. For an English translation of the trial transcript, See FRANCIS MARION CRAWFORD,SALVE VENETIA: GLEANINGS FROM VENETIAN HISTORY. VOLUME: 1 (1905); Elizabeth C.Childs, Suspended License: Censorship and the Visual Arts (1997).31. Paolo Cagliari (1528–1588), popularly known as Veronese from the city of hisbirth, Verona was an eminent fresco and oil painter in the Mannerist style of the ItalianLate or High Renaissance, especially in Venice alongside Titian and Tintoretto.32. Tiziano Vecellio (1488–1576), popularly known as Titian, was the pre-eminentmember of the so-called Venetian School, with Veronese and Tintoretto.33. Such “modernisation” was commonly practised by artists during theRenaissance.34. Crawford, supra note 30; Childs, supra note 30.
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