What is Sculpture?

On 27 July 2011 the UK Supreme Court (UKSC) handed down a landmark judgment that decided the legal meaning of sculpture in UK copyright law.

The significance of this decision is far-reaching, because UK law operates on a system of judicial precedent: courts are bound to follow judgments of courts ranked higher than them, and to apply those higher court judgments when trying cases that have the same or similar facts and laws in issue. The judgment is also far-reaching because the UK now has an authoritative and contemporary yardstick by which future court decisions about the legal meaning of art – not only sculpture – may be measured.

Courts in the UK (and beyond) have always been reluctant to decide the legal meaning of art, but sometimes are required to do so. In the celebrated case of Brancusi v United States in 1928 the issue before the court was whether Brancusi’s abstract bronze, Bird in Space,1923, was a ‘sculpture’ and not a ‘utilitarian object’ liable to import tax. The court found in Brancusi’s favour, ruling that the bronze was a sculpture and therefore import tax-exempt.

This latest case before the UKSC concerned the 1977 movie Star Wars Episode IV: A New Hope. The first trial was at London’s High Court of Justice in 2009, where George Lucas and his Star Wars merchandising companies sued an English film props maker, Andrew Ainsworth. 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. Lucas lost his case and appealed to the Court of Appeal of England and Wales, which in 2009 supported the High Court’s 2008 decision (Artlaw AM 323 & 343). Lucas then appealed to the UK Supreme Court, and that court’s reasoning in support of its decision about the legal meaning of ‘sculpture’ is both illuminating and instructive.

As the highest and therefore most authoritative UK court, the UKSC was first required to consider previous relevant judgments of courts in England and the Commonwealth on the legal meaning of ‘sculpture’. A central issue that emerged from this review was ‘the relative significance of the functional and the artistic’ – in other words, whether or not a work was intended by the artist to be a utilitarian object (as was contended by US Customs in the Brancusi trial). Reference was made to a celebrated decision by the New Zealand Court of Appeal in 1985 holding that Frisbees were not sculptures, where the court said “It seems to us inappropriate to regard utilitarian objects such as plastic flying discs, manufactured as toys, by an injection moulding process, as items of sculpture for the purposes of the Copyright Act.”

A similar case was tried in England in1995 to decide whether scalloped shapes of die-cast moulds of the heating plates for sandwich toasters were in fact casts or moulds for ‘sculpture’.
The UKSC confirmed they were not, and in doing so referred to the Concise Oxford Dictionary’s definition of ‘sculpture’: “Art of forming representations of objects etc or abstract designs in the round or in relief by chiselling stone, carving wood, modelling clay, casting metal, or similar processes; a work of sculpture.”; and especially stressed the significance of the first word, “Art”, in the dictionary definition. Moreover, the UKSC confirmed that “No ordinary citizen – indeed no ordinary lawyer –would regard a sandwich toaster or any part of it as a work of sculpture – even if it did produce ‘scalloped’ sandwiches. So why should a copyright lawyer take a different view? A total or almost total emphasis on the manner of creation …. produces a result which offends common sense and in our view is wrong. There must be some element of artistic expression however unsuccessful.”

Guidelines as to the legal meaning of ‘sculpture’ were handed down by the High Court Judge in the first trial, which were endorsed by the Court of Appeal, and were therefore subjected to argument and judicial review by the UK Supreme Court: they were approved; and are summarised as follows:
•  ‘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
• no judgment is to be made about artistic merit
• not every three-dimensional representation of a concept can be regarded as a sculpture
• 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
• for example, a pile of bricks, temporarily on display at Tate Modern for two weeks, is plainly capable of being a sculpture; the identical pile of bricks dumped at the end of a driveway for two weeks preparatory to a building project is equally plainly not; one asks why there is that difference, and the answer lies in having regard to its intention – one is created by the hand of an artist, for artistic purposes, and the other is created by a builder, for building purposes.

In order to succeed in their appeal, Lucas’s legal team contended that the Stormtrooper armour had no practical function at all and was sculpture, because its purpose was wholly artistic. They argued that “the question of functionality does not arise, because the articles in question have no functional purpose whatever. The Stormtroopers’ helmets and armour did not exist in order to keep their wearers warm or decent or to protect them from injury in an inter-planetary war. Their sole purpose was to make a visual impression on the filmgoer. They are therefore artistic works.” These and related contentions were rejected by the UKSC, which affirmed the decisions of the High Court and Court of Appeal, by adopting and quoting the heart of the decision made by the first trial judge: “It was a mixture of costume and prop. But its primary function is utilitarian. While it was intended to express something, that was for utilitarian purposes. While it has an interest as an object, and while it was intended to express an idea, it was not conceived, or created, with the intention that it should do so other than as part of character portrayal in the film. That, in my view, does not give it the necessary quality of artistic creation.”

Reflecting on his success, Ainsworth said “David can prevail against Goliath if his cause is right. If there is a force, then it has been with me these past five years.” Artists take note: your creative intentions are paramount.

© 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.