The history of modern and contemporary western art and law is punctuated with rare court decisions demonstrating extraordinary understanding of the content of artwork, and respect for the artist’s creative intentions. One such case was decided recently, and will be examined in the light of two similarly remarkable court judgments given over the past century.
In 1926, Constantin Brâncuşi sold a bronze cast of his artwork, Bird In Space, 1923, to a US collector. Brâncuşi shipped the work from France to New York City. On arrival, US Customs decided the bronze was not art, but ‘merely a manufacture of metal’; the object was formally classified as ‘Kitchen Utensils and Hospital Supplies’, which required import duty to be paid as a percentage of the market value of the metal. US tariff law exempted original works of art from import taxation, so Brâncuşi sued US Customs, claiming that the bronze was his ‘original sculpture’, and therefore should have been allowed entry import duty-free.
At the US court trial, both parties called expert witnesses to attest whether the bronze was art. US Customs submitted opinion evidence from ‘several men, high in the art world’ who variously said ‘if that’s art, hereafter I’m a bricklayer’ and ‘dots and dashes are as artistic as Brâncuşi’s work.’ All in all, their expert opinion was that ‘Brâncuşi left too much to the imagination.’
Brâncuşi gave written evidence of his execution of the work: ‘I conceived it to be created in bronze and I made a plaster model of it. This I gave to the founder, together with the formula for the bronze alloy and other necessary indications. When the roughcast was delivered to me, I had to stop up the air holes and the core hole, to correct the various defects, and to polish the bronze with files and very fine emery. All this I did myself, by hand; this artistic finishing takes a very long time and is equivalent to beginning the whole work over again. I did not allow anybody else to do any of this finishing work, as the subject of the bronze was my own special creation and nobody but myself could have carried it out to my satisfaction.’
The US court’s judgment drew strongly on the intentions of the artist, saying: ‘There has been developing a so-called new school of art, whose exponents attempt to portray abstract ideas rather than to imitate natural objects. Whether or not we are in sympathy with these newer ideas and the schools which represent them, we think the fact of their existence and their influence upon the art world as recognized by the courts must be considered.’ The court concluded: ‘The object now under consideration … is the original production of a professional sculptor, and is in fact a piece of sculpture and a work of art according to the authorities above referred to … we sustain the protest and find that it is entitled to free entry.’
In 2008 a London court tried a case that was strikingly similar to Brancusi’s, and concerned video installations by Bill Viola and light works by Dan Flavin, which had been dismantled into constituent parts and shipped to the UK from the US. On arrival, UK Customs required payment of import taxes on the basis that they were not artworks, but ‘projectors and light fittings’. Under UK tax laws, importers of projectors and light fittings were required to pay the normal import VAT rate of (then) 17.5% plus Customs Duty of 3.7%. These percentages were applied by customs officials not to the market value of projectors and light fittings, but – absurdly – to the value of the constituent parts as artworks. UK tax law provided that artworks imported into the UK were subject to a reduced VAT rate of 5% (of a work’s market value plus insurance and transport costs) and zero Customs Duty.
For their lawsuit to succeed, the importers needed to satisfy the court that the constituent parts should be treated as artworks, in particular as ‘sculpture’, and called expert art witnesses in support. The court was persuaded by this evidence, holding that the meaning of ‘sculpture’ had been ‘significantly enlarged and developed by artists during the Modern Art era to embrace the materials in question … and it would be absurd to classify any of the works as components ignoring the fact that the components together make a work of art’.
In September 2024, The Supreme Court of Tasmania gave judgment in a case brought against Hobart’s Museum of Old and New Art. The male complainant was a museum visitor, who had been denied entry into installation artwork Ladies Lounge, a room the artist had designated as being for ‘women-only’. Conceived and executed in 2020 by Tasmania-based artist Kirsha Kaechele, as a protest against the exclusion of women from ‘gentlemen’s clubs’, the work also alluded to the restriction of women to separate ‘ladies lounges’ in Australian pubs until 1965.
The legal basis for the complainant’s lawsuit was Tasmania’s 1998 Anti-Discrimination Act, which prohibits discrimination against a person on the ground of gender when facilities, goods and services are being provided. However, the statute allows exceptions: in particular that ‘a person may discriminate against another person in any program, plan or arrangement designed to promote equal opportunity for a group of people who are disadvantaged or have a special need because of a prescribed attribute [gender]’. The UK’s Equality Act 2010 is similarly framed.
The court had particular regard to the nature and content of the artwork and the artist’s creative intentions, when ruling that Ladies Lounge could lawfully exclude men. In the court’s judgment ‘the correct approach is to ask first whether the arrangement’s purpose was to promote equal opportunity’, and it concluded ‘on the evidence, the unequivocal answer is yes because the Ladies Lounge was to provide women with an exclusive space where they receive positive advantage as distinct from the general societal disadvantage they experience’.
A key aspect of the legal and artistic circumstances of the case, as submitted to the court by the artist’s lawyer, was the ‘participatory element of allowing women and denying men … who are experiencing Ladies Lounge: their experience of rejection is the artwork … they experience the artwork differently than women, but men are certainly experiencing the artwork as it’s intended.’
© Henry Lydiate 2024