Is It Art?

Increasingly, Nowadays, That's a Judicial Decision


May 31, 2012

When did judges become the ultimate arbiters of art?


Hardly a month goes by without a court being asked to settle a dispute over the nature of artistic meaning, expression or authenticity. These are the big-think questions that confound philosophers, art critics and artists themselves. But judges are regularly obliged to take on these questions—and their answers have huge consequences for what can and cannot be attempted by artists.


Among the most recent legal tussles is a claim for damages involving one of Sol LeWitt's Wall Drawings. The conceptual artist made more than a thousand of them before his death in 2007. Which isn't to say he drew or painted all of them. The genius of Mr. LeWitt's Wall Drawings was that they were generally executed by others. He drew up the plan or strategy for each work, with directions —written out on certificates signed by the artist—that were as specific in intent as they were abstract in result.


But the question then arises, what is the work of art? Is it the instructions written out on the signed certificate, or the image rendered according to the instructions? The owner of one LeWitt Wall Drawing is suing a gallery that lost the drawing's certificate. If it comes to determining damages, a judge may have to decide whether the certificate was itself the artwork.


And then there is the continuing litigation over whether Richard Prince's "appropriation" artworks have original meaning or are just copyright-infringing copies of other artists' works.

Or take the litigation over Cady Noland's 1990 work "Cowboys Milking." In February, art dealer Marc Jancou sued Sotheby's and Ms. Noland for $26 million (later adding $20 million more to the claim for damages). The auction house had agreed to sell "Cowboys Milking" for Mr. Jancou, but according to the dealer's court filing, Sotheby's pulled it from the auction at the last moment, at the artist's request. According to the art-industry newsletter Baer Faxt, Ms. Noland had "disavowed" the work.


Can an artist disown a piece long ago sold? And, if so, does the artist have to give a reason? Would it be reason enough if a work were slightly damaged, or if an artist simply no longer liked the work of her salad days? And what then? Does a work cease to be art if the artist renounces it?

This last question, in particular, is the sort of ontological question philosophers make a specialty of noodling. But increasingly these tricky theoreticals about the nature of art are being answered, not by the heirs of Aristotle but by the judiciary. We are in the age of courthouse aesthetics.


It's no coincidence that legal scuffles over the nature of art have proliferated in tandem with the avant-garde. Blur the definition of art and it doesn't take long for legal disputes to arise, as when U.S. customs agents in 1926 refused to grant sculptures by Constantin Brancusi the exemption from import duties given artwork—they thought the bronze objects were better categorized as "Kitchen Utensils and Hospital Supplies."


In a foreword to Ralph Lerner and Judith Bresler's standard text "Art Law," U.S. Circuit Judge Pierre N. Leval marveled at how the legal issues around art have mushroomed. "In the 1950s 'art law' did not exist," he wrote. But thanks to a remarkable "escalation of the public's interest in art," there has been a commensurate escalation of the "financial implications of art transactions." And where that much money is at stake, lawsuits are sure to follow, meaning ever more—and more complex—rulings about art from the bench.


The disciples of Marcel Duchamp have done their best to question the very nature of art. But once whimsical gestures end up valued in the millions, it matters in a whole new way whether a Brillo box is a Warhol or just a Brillo box. How ironic: The artists who most wanted to subvert notions of authority have ended up empowering squares in robes to judge what is and isn't art.

Judges aren't necessarily bad at making aesthetic judgments (though goodness knows plenty are). Jonathan Gilmore, who teaches philosophy of art at Yale, credits courts for dealing with aesthetic issues in a way that can be more thorough than the ivory-tower boys, because "a court is required to make explicit its reasoning." But that reasoning is often skewed by the very nature of the judicial enterprise, which requires some sort of decision be made even when an honest philosopher might have just thrown up his hands.


The conundrums judges face when it comes to art are often no less perplexing than the ancient philosophical paradox of Theseus' ship. Imagine a ship that is prized because it was sailed by the hero Theseus. Over the years, its caretakers carefully repair it by replacing worn planks and woodwork. At some point, every piece of the ship has been replaced. Is it still Theseus' ship? And what if someone saved all the worn pieces and assembled them into a complete (if tattered) boat—which one is the true ship of Theseus? Philosophers have gnawed on this paradox for thousands of years. But imagine the poor judge who finds Estate of Theseus v. Ancient Athens Salvage Yard tossed in his lap: He doesn't have the philosophical luxury of pronouncing the controversy unsolvable; he has to decide which of the competing claims to honor.


Those trying to think about the nature of art have to turn, these days, more to the likes of Blackstone than Bernard Berenson or Monroe Beardsley. That can't be good for art.