Art and the law on trial

Does the public need protecting against art and artists? Recent serious and real events in Parliament and the Courts have raised this apparently whimsical and abstract question to public notice.

The law-makers and the judiciary became involved because artistic activity is as capable of being banned, constrained and limited as anything else Parliament considers evil in society and therefore suitable for legal sanction: art and artists have no legal rights in this country, no immunity from the law, and no special place outside the ordered parameters of a lawful society. Freedom of expression is what we have: artistic activity as such is not proscribed by law. Anyone can sell, publish, exhibit, expose, reproduce, teach, and even make, art so as long as that activity is carried out within legal constraints. The nature and character of such work, of the transaction, or of the parties themselves, may well make the activity the subject of prosecution as a crime or restraint by court order.

Selling work exposing subject-matter in breach of confidential or contractual obligations not to do so is unlawful: Spy-Catcher (had such information been the subject of a visual work, such legal restraints could equally have been applied). Displaying a visible representation that is threatening, abusive or insulting within the bearing or sight of a person likely to be caused harassment, alarm or distress, is now an offence contrary to the Public Order Act 1986: Peter Rix's poster-montage depicting the Prime Minister dressed in fishnet stockings and suspenders and wielding a whip was the subject of a prosecution last December at a London magistrates' court. Unauthorised reproduction of a copyright work may not be legally protected if the work is obscene, just as a contract for sale of a stolen artwork (between thief and dishonest receiver) will not be enforceable, and as sexual services in payment for a commission contract will not be enforced or compensated by the courts: 'public policy' is a legal concept and rule, developed and applied by the courts, to override any claim or remedy – however valid and lawful on the face of it – on the grounds that the law will not support obscenity, irreligiousness, blasphemy or otherwise illegal, unlawful or immoral activity. Promoting homosexuality through the teaching of its acceptability as a 'pretended' family relationship in state-maintained schools will be outlawed when the Local Government Bill (Clause 28, presently passing through Parliament) becomes law: the teaching of art and art history is not exempt from this provision as currently drafted.

The making process itself – essentially a matter of private freedom of choice of subject, method and manner of execution and, ordinarily therefore, not the object of constraint or control in order to protect the public – has recently been prosecuted as criminal activity: Boggs's drawings depicting £1, £5 and £10 notes put him in the dock at the Old Bailey last November, charged with reproducing currency contrary to the Forgery and Counterfeiting Act 1981. Whether or not Parliament intended, or simply failed to spot, that artistic activity should or would be caught by any of its enactments, the courts are always left to decide – according to criteria contained in the statute itself or in precedents laid down by superior courts in similar types of case. Normally, the law does not allow apparently illegal or unlawful activity to be defended or excused on the grounds of 'artistic merit': Spy-Catcher was partly defended on the grounds of freedom of expression, but this failed; Rix successfully challenged the prosecution on the grounds of there being no 'victim', rather than creating a legal precedent of 'artistic merit' as a defence under the Public Order Act provision which specified no such defence; Clause 28 of the Local Government Bill makes no exception for art or art history education which, if properly given, would undoubtedly make unlawful any discussion of the lives and works of many significant contemporary and historical artists. Boggs successfully persuaded the jury of his artistic bona fides, but created no precedent to prevent his or any other's artistic work falling foul of the Forgery and Counterfeiting Act 1981 (which makes no exceptions) in the future.

Occasionally, however, the law does permit 'artistic merit' as a defence or excuse, but only at court months after the law – taken at its face value – has been used to stop the activity in question, and then only if the judge, jury or magistrates can be satisfied by the defending artist or administrator that it should be allowed to continue as something which is 'for the public good'. The Indecent Dismays (Control) Act 1981 prohibits the display of any indecent matter to the public, but exempts exhibitions in art galleries and museums so long as such works (i.e. 'indecent' works) are visible only from within the gallery or museum; even so, this exception did not prevent the closure of part of the 'Power Plays' exhibition at the Ferens Gallery in 1984, when the responsible authorities found 'too disturbing' Sue Coe's piece The Rape of Rosa Velez. The Obscene Publications Act 1959 creates an offence of having an obscene article with a view to publication; galleries and museums are not exempted as such, but it is a defence to prove that the publication is justified as being 'for the public good' on the grounds that it is in the interests of 'science, literature, art or learning, or of other objects of general concern' – expert witnesses are allowed to be called to give their opinions of the 'artistic' merits of the work.

Parliament's 'artistic merits' defence provisions rely on the opinions of experts in the relevant field to act as a bulwark against arbitrary, opinionated personal prejudice or ill-will of would-be art censors. It tries to strike a reasonable balance between its constitutional duty to act for and on behalf of the public to protect the weak, vulnerable and corruptible in society from 'depravity and corruption' (the obscenity laws) and from 'indecency' (the displays control law).

Sadly, these two statutes are rare (effectively the only) exceptions, which leaves most art and artists themselves, weak and vulnerable to criminal prosecution and civil suit by potentially improper use of laws which, if a reasonable Parliament were asked again, would probably provide a defence, excuse or exception on the grounds of 'artistic merit': the Forgery and Counterfeiting Act 1981; the Local Government Bill, Clause 29; the Copyright, Designs and Patents Bill; and the Public Order Act 1986.

Finally, therefore, there is a vital role for the art community, perhaps best articulated and supported by the Arts Council as the natural constitutional conduit to and from Government: whenever any legislation, aimed at protecting the public, is before Parliament (be it innovative, reforming or consolidating), examine its likely impact on art and artist, construct the arguments necessary to protect freedom of expression, draft any necessary amendments, and lobby hard and persistently with one question: does the public need protecting?

© Henry Lydiate 1988

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This article is from the Artlaw Archive of Henry Lydiate's columns published in Art Monthly since 1976, and may contain out of date material. The article is for information only, and not for the purpose of providing legal advice. Readers should consult a solicitor for legal advice on specific matters. Artists can get free online legal information from Artquest.