These past few weeks, I’ve been putting together a hypothetical art collection based on real-time art market data and activity. My peers are doing the same, and there has been an extensive amount of discussion and chatter about our projects and progress.
Now, you’d think that with a mix of people with humanities and finance backgrounds, most of the discussions would be about the actual content of the collections – our pieces, the artists, curatorial decisions, etc. – or perhaps our budgets.
No, in fact a lot of discussion has been around customs and import/export limitations and requirements.
As it turns out, coming up with a rationale and vision for a gallery is an intuitive, fun and engaging process for the overwhelming majority of people with a passion for art. The real hurdles arise in the realm of logistics and legal requirements. A stellar response from one of my frustrated colleagues regarding the uncertainty of a contemporary artwork in her collection being recognised as ‘art’ rather than a utility was “Well of course its art! I’m buying it from a gallery!”
This brings me to the first question that I’ve crossed when learning and exploring the topic of art law: what ought to qualify as art?
Where do we obtain and construct our definition of art from, for legal purposes?
Here’s the first thing I got from Google:
1. The expression or application of human creative skill and imagination, typically in a visual form such as painting or sculpture, producing works to be appreciated primarily for their beauty or emotional power.
This definition seems to be a thorough one. It tackles sources, mediums, and function (ambitious, impressive stuff). It is an extremely broad definition too, and likely to capture virtually all works seeking the status of ‘art’.
What are the legal implications of adopting a definition this broad?
Well, for one, the frustrations of my peer purchasing from a gallery may be removed. One less hindrance in the transactional process is beneficial to the volume of art market activity. Buyers would have less reason to be sceptical about a purchase based on import/export reasons, the process would be less costly both in terms of man-hours and resources contending an unfavourable decision by customs authorities, and it would incentivise those wishing to join the community of commercial artists.
The unfortunate irony here is that general definitions of art are not adequately determinative.
The definition above uses 10 other nouns (in red) of which at least 4 are highly subjective. Whisper them to yourself until you understand how mammoth this task is.
There are alternative solutions for figuring out what ought to qualify as art.
One is that we leave it to legal authorities, judges and law-makers, to define art for us. This has been done historically through areas like customs law, copyright law and other less global legal areas like the rights of artists.
But a quick look at history will show that this is not a wholesome solution (imagine people in history in the same position as my lovely frustrated colleague). Players like artists, sellers of artworks, purchasers of artworks, auctioneers, public and private institutions have run into trouble time and again because ideas within the artistic community (the creators of art, the important guys) did not extend to the minds of judges and lawmakers. Some may argue that it is accounted for by the role opinions of experts play in a court setting, but the set of tools judges employ to come to their decision in individual cases is not only complex and elusive, but inconsistent.
My point is, this solution falls short because it is capable of creating (and indeed has created) prohibitions for the artistic community and art world that hinder growth.
So then perhaps the best solution is to focus on what the art world says. Instead of taking the general idea of art (Check out: https://www.oxforddictionaries.com/our-story/creating-dictionaries) take the more specific one built by members and players of the art world.
If it’s there, it’s art.