I Know It When I See It

I was pleased to see, a while ago, that a Harvard law professor linked to this piece for his students.

“…the further disintegration of the divide between artists and not-artists, art and not-art.”

Years ago, a Justice of the United States Supreme Court was said to have explained, “I don’t know how to define it, but I know it when I see it.” He was talking about obscenity. He might as well have been talking about art.

Assuming, for argument’s sake, that there exists a way to determine what is and is not “art,” who would be the best arbiter? Does the answer to that change, depending on the sources of funding for the undertaking? Could a work, privately funded, be acceptable art, and yet, if publicly funded, be limited or prohibited? And would the judge know an artist if he saw one? What about a musical work created primarily by a computer that was programmed by a musician? What if this amateur programmer were a secretary by day? Do the answers change? Is it art? Who or what is the artist?

One element of the problem is that art is difficult to define. And yet, where many in the traditional creative communities might fear to tread, legal institutions proceed, not, perhaps, because they want to but because the framework of the law and statutes in this country require it. As long as our legal institutions are charged with upholding the laws, and those laws contain language about “artistic merit,” we will continue to encounter these moments of aesthetic uncertainty.

When we are unsure, we often turn to others to advise us. In plagiarism cases, experts testify in court for both sides: the writer and the other writer; the artist and the other artist; the composer and the other composer. Juries listen intently to these experts whose job it is to interpret for the non-experts what characteristics of the two artistic works are alike or different, unimportant or significant.

There are copyright cases where a court must distinguish between designs for “useful articles” that are utilitarian and those designs which are not. The exercise effectively relegates only ornate, kitschy objects (a cow-headed letter opener, perhaps) to the non-utilitarian (and thereby protectible) side, leaving all objects in which form and function merge (a letter opener made of a torqued sweep of stainless steel, for example) unprotectible by copyright. The legislation appoints the courts as arbiters of what raises a designed object from the utilitarian to the “artistic or aesthetic.” Much of this century’s most significant new design – of objects whose appearance is as effective as their utility – is thereby refused copyright protection. Taking this rule to an extreme, objects afforded the honor of appearing in the design collection at New York’s Museum of Modern Art would very likely be not-art. On the other hand, if art is what is exhibited in art museums, the result might change.

Historically, United States Customs duties were generally chargeable against objects imported into this country, but works of art were exempted, and could come in duty-free. The Constantin Brancusi sculpture, Bird in Flight, was the subject of litigation over its status with U.S. Customs. In order to be admitted duty-free, the work had to satisfy the Customs Office’s criteria for “art,” which in 1928 did not allow for abstract forms such as Brancusi’s. The Brancusi litigation changed the law, broadening the definition of art to include nonrepresentational, abstract, art.

On another front, United States Immigration officials can and do refuse temporary visas to recognized artists from other nations, preventing them from entry into this country, if their work is deemed by that agency to be lacking in artistic merit. Further, the burden is on the petitioner to demonstrate artistic merit: the artist is presumed a not-artist until proven otherwise.

Even if we wanted to rely on the three branches of government to determine artistic merit for us, they are not equipped for the task. It’s the law that courts may only interpret the law that already exists. Legislatures vote statutes into law based on their political perceptions, and administrative agencies are sensitive to their executives’ politics. Few judges, politicians or career bureaucrats have attained their positions on the strength or resilience of their aesthetic sensibilities.

It is becoming clear that the old American compartmentalization is crumbling. We can no longer separate the world of art from the mundane world; we can no longer rely on Hollywood to produce pap, and France to produce art films; we can no longer expect museums to protect us from “low” art; we can no longer assume concert halls will be free from popular culture. Meanwhile our legal structure remains rooted in the prior assumptions. Context becomes central to the discussions of artistic merit: one court contrasted the artistic value of nude dancing in a bar, rather than at Lincoln Center.

In a general sense, much of the “art” around us every day was produced with private capital in the course of businesses: manufacture, entertainment, advertising, publishing. Other art has survived in a more rarefied atmosphere of concert halls, museums, foundation grants, academic environments. The notion of “fine art” to which courts and legislatures referred a century ago, has eroded beyond recognition. What we are left with is a shifting notion of art, constantly changing in size, form, and meaning, and at least partly dependent on the eyes, ears and situation of the beholder.

Another Supreme Court Justice, Antonin Scalia, opined more recently:

“[I]n my view it is quite impossible to come to an objective assessment of (at least) literary or artistic value, there being many accomplished people who have found literature in Dada, and art in the replication of a soup can. …. I think we would be better advised to adopt as a legal maxim what has long been the wisdom of mankind: De gustibus non est disputandum. Just as there is no use arguing about taste, there is no use litigating about it.”

American anti-elitist pluralism is in tension with our cultural policies and legal language on the subject of artistic merit. We have grown and developed and, with much of the rest of the world, have broadened and liberalized our tastes. That trend has not been a smooth progression, however. It has been a bumpy ride through the centuries of immigration and conquest to the heterogeneous, friction-filled interminglings of culture, history, expectation, and aesthetics which we experience today. While we may have rejected the elitism of an earlier time, there is still in this country an uncertainty about art and its role. Seen in this light, the inconsistent, sometimes illogical, ways with which our legal institutions deal year to year with matters of art and aesthetics may be understandable.

Add to this mix the combined effects on the arts and culture of the ubiquity of digital information and the Internet. The three Court of Appeals judges who invalidated the Communications Decency Act in 1996 published in their extensive opinion a long list of facts about the Internet, concluding enthusiastically that the Internet must be regarded as a great “democratizing” influence. Transmitting digital information of all kinds, the Internet gives opportunities to vast numbers of people around the world to create as well as appreciate, to be content providers as well as content consumers, and through their new Internet-assisted relationships to change the arts and culture. Those fundamental changes include the further disintegration of the divide between artists and not-artists, art and not-art.

Tools for manipulating digital data – still images, moving pictures, composed music, ambient sound, etc. – are relatively affordable and available nearly worldwide. These tools can now “participate” in a more proactive way than hand-controlled tools of the past. For just one example, there is software that extrapolates from some typed-in chord symbols an entire musical piece, in written form and in a digitized performance using emulated real musical instruments. The software can propose a melody for this song, and its title, too, for the tapped-out composer. Equivalents in other media abound.

Distinguishing art from not-art, artist from not-artist, is impossible enough already, but a recent news item suggests more confusion is around the corner. William Ditto, a physicist at the Georgia Institute of Technology’s Applied Chaos Laboratory, has been working to combine the functions of living neurons and silicon chips. Neurons are capable of a kind of learning that thrives on chaos, not order – the more fluid, life-like, learning our inanimate thinking machines have not been able to imitate.

Inevitably we can expect to see new digital creations, by humans in collaboration with “biosilicon” equipment (nerve cells from eels teamed – by humans – with silicon chips that were designed by humans, and manufactured, perhaps, by machines). Who will be the artist then? What will be the work of art? Who will be the audience for these creations? Will we humans send out ‘bots – personalized virtual assistants – to pre-screen these works, to save our time and attention?

Will we still know it when we see it?


The Federal copyright statute provides that “the design of a useful article shall [be protectible] only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article. 17 U.S.C. §101. http://www.copyright.gov/title17/92chap1.html#101 [replacing Old Link]

Selections from the Architecture and Design Collection of the Museum of Modern Art can be viewed online at [Old Link] http://www.moma. org/docs/collection/archdesign/index.htm

The Brancusi case legitimizing abstract art in the US Customs Service is (in a book) at Brancusi v. U.S., 54 Treas.Dec. 428 (Cust.Ct. 1928).

Justice Scalia’s de gustibus remarks are from the case Pope v. Illinois, 481 U.S. 497,504-505 (1987) (Scalia, J., concurring), available at http://laws.findlaw.com/US/481/497.html

For an engaging summary of the “cultural revolution” initiated by American technology in this century, see David Gates’ article for Newsweek magazine. [Old Link] htt p://newsweek.com/nw-srv/issue/03_99b/printed/int/socu/ov0903_1.htm

The important Circuit Court opinion on the Communications Decency Act is available on line at [Old Link] http://www.vtw.org/speech/decision.html The Supreme Court’s affirmance is at [Old Link] http://laws.findlaw.com/us/000 /96-511.html.

For more information on “biosilicon” developments combining life forms with computing, see this BBC article about Prof. Ditto’s research: [Old Link] http://www.bbc.co.uk/tw/stories/technology/9906comp.shtml. The BBC article supplies additional links as well.

No books were harmed in the drafting of this article. First published, 2 August 1999. Arts4All Newsletter Issue 3.

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