Flavin’s Fittings

In 1928 a US Customs Court in New York ruled that Brancusi’s sculpture Bird in Space, 1923, was a work of art, not an ‘article of utility’, which US Customs had decided it was.

US photographer Edward Steichen had bought the work in France and imported it into the US, whereupon he was required to pay 40% of the value of its bronze material  – ‘merely a manufacture of metal’, said the Customs Inspector at the trial. Works of art could be imported duty free under US law at the time. Gertrude Vanderbilt Whitney financed the lawsuit by Brancusi who argued that his work was, under the law, an ‘original sculpture’. Brancusi’s friend Marcel Duchamp had suggested the lawsuit, at the heart of which lay the question: what is art?

This now landmark trial, and especially its enlightened ruling, has been cited by art lawyers worldwide for eight decades as an iconic legal precedent: a locus classicus. The court’s reasoning relied strongly on the intentions of the artist whose work was in contention, and on expert opinions of eminent art world curators, collectors, historians and other artists. The court stated: ‘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.’

In July 2008, London’s High Court of Justice adopted a very similar approach when deciding the legal definition of ‘sculpture’ under UK copyright laws. The lawsuit was brought by George Lucas and his Star Wars merchandising companies against an English film props maker, Andrew Ainsworth (Artlaw AM 323). It concerned the reproduction of replicas of the white Stormtrooper uniforms used in the first Star Wars film. Ainsworth had been commissioned by Lucas in the 1970s to make the armour in vacuum-moulded plastic, but had recently used his original moulds to make and sell versions to members of the public. Lucas claimed violation of his copyright in the original designs of the armour, but in order to succeed he had to satisfy the court that his designs were for works of sculpture. The court ruled that the designs of the armour were for ‘film props’, not for sculpture. The court’s reasoning included the following refreshingly enlightened approach: ‘sculpture’ can be things going beyond what one would normally expect to be art in the sense of the sort of things that one would expect to find in art galleries; the essence of a sculpture is that it should have, as part of its purpose, a visual appeal in the sense that it might be enjoyed for that purpose alone, whether or not it might have another purpose as well; the purpose is that of the creator, who may fail, but that does not matter (no judgments are to be made about artistic merit) because it is the underlying purpose that is important. Lucas has appealed to the UK’s Supreme Court and the hearing is scheduled to begin in March 2011.

In December 2008, a VAT Tribunal in London tried a case that was strikingly similar to Brancusi’s. The artworks concerned were video installations by Bill Viola and light works by Dan Flavin. Art dealers Haunch of Venison had imported the works into the UK from the US, and had been required by Her Majesty’s Revenue and Customs (HMRC) to pay import taxes on the basis that they were not artworks, but projectors and light fittings. According to relevant EU and UK import laws, importers of artworks into the EU are required to pay a reduced VAT rate of 5% (of the works’ market value plus insurance and transport costs). Importers of projectors and light fittings into the EU via the UK are required to pay the normal VAT rate of (then) 17.5% plus Customs Duty of 3.7% and, most curiously, HMRC based its assessment of the value of these so-called ‘projectors and light fittings’ on their market value as artworks. Undoubtedly having strong regard to the Brancusi judgement of 80 years earlier (and possibly the Star Wars ruling six months earlier), the Tribunal ruled that the imported materials were artworks. According to a leading international art lawyer who fought and won the case for Haunch of Venison, Pierre Valentin of Withers International, ‘there the matter should have rested’. Not so.

In September 2010, European Commission Regulation 731/2010 came into force, specifically dealing with Viola’s and Flavin’s works and classifying them as ‘components’ for which no reduced VAT rate is allowed. In relation to Viola’s work, the Regulation states: ‘classification as a sculpture is excluded, as none of the individual components or the whole installation, when assembled, can be considered as a sculpture … It is the content recorded on the DVD which, together with the components of the installation, provides for the “modern art” … Consequently, the components of the installation are to be classified separately … the video reproducing apparatus … the loudspeakers…. the projectors … and the DVDs.’ As for Flavin’s light works, their ‘classification as a sculpture is excluded, as it is not the installation that constitutes a “work of art” but the result of the operations (the light effect) carried out by it. Classification … as a collector’s piece of historical interest … is [also] excluded … It has the characteristics of lighting fittings and the product is therefore to be classified as wall lighting fittings.’

Why did the EC go to such elaborate lengths to overturn the decision of a London VAT Tribunal in relation to a relatively small amount of import tax in relation to artworks? Although Valentin no longer represents Haunch of Venison, he recently conducted his own research to try to discover the answer. Using his rights under Freedom of Information legislation he discovered that ‘within weeks of the London [Tribunal] decision, the issue was on the agenda of the European Commission’s Customs Code Committee in Brussels. Several Member States reported that their tax authorities had considered the issue of video art previously. The meeting was told that in two Members States (the UK and the Netherlands), a VAT Tribunal had held that video installations should be classified as sculptures. By April 2009, without apparent further consultation, the Committee decided that “a draft regulation will be prepared for a future meeting. This will overturn that UK [and Dutch] National Court decisions”. This eventually became EU Regulation 731/2010.’ Valentin strongly argues in the January 2011 edition of The Art Newspaper that the EC’s definition of art (in the Regulation) is ‘a patently absurd piece of legislation. Adopted behind closed doors, without an apparent understanding of the subject matter, it reverses two national judicial decisions that both ruled that video installations should be classified as art. No judge had decided the issue in any other way. There was no need for the Regulation, which is contrary to the jurisprudence of the European Court of Justice’.

Have contemporary art market professionals the courage and conviction of Duchamp and Brancusi and Whitney in 1928 to take the case to the European Court of Justice?


© Henry Lydiate 2011

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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.