Magazine article Art Monthly

What Is Sculpture?

Magazine article Art Monthly

What Is Sculpture?

Article excerpt

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 AM323/ 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 in 1995 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.' The UKSC especially stressed the significance of the first word, 'Art', in the dictionary definition; moreover, it 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. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.