Legal Drama

A recent trial involving works by Dan Flavin and Bill Viola expanded the legal definition of what ‘art’ is

Bill Viola, Man of Sorrows (2001). Courtesy of Haunch of Venison

Bill Viola, Man of Sorrows (2001). Courtesy of Haunch of Venison

Trials in which the meaning of art is in dispute are rare as both legislatures and courts are understandably reluctant to make aesthetic judgments. One notable exception is the trial of Brancusi v United States (1928) in which Constantin Brancusi successfully established before the US Customs Court that his Bird in Flight (also known as Bird in Space, 1925) was a sculpture and could therefore be imported into the United States free from import duty. Brancusi’s elegant, abstract bronze had been mistakenly believed by US Customs to be an article of utility and classified under the category of ‘Kitchen Utensils and Hospital Supplies’. In the trial, expert witnesses (including Jacob Epstein and Edward Steichen) were key to persuading the US Customs Court that it should recognize this non-representational art work as a work of sculpture. The court said that, ‘[w]hether or not we are in sympathy with those newer ideas and the schools which represent them, we think that the fact of their existence and their influence upon the art world as recognised by the courts must be considered’.

Eighty years later, in December 2008, the VAT and Duties Tribunal (London) held that several video installations by Bill Viola and a light piece by Dan Flavin could be imported into the UK as ‘sculptures’. The effect of the tribunal’s decision means that the art works will not be subject to customs duty and will be subject to import VAT at a reduced rate of 5% as opposed to the standard rate (currently 15%). The dispute began in 2006 after Haunch of Venison imported six disassembled video installations by Viola (Catherine’s Dream, 2002; Man of Sorrows and Witness, 2001; two editions of Catherine’s Vow, 2002; and Mater, 2001) into the UK from the US, and signalled their intention to import a light sculpture by Flavin (Six Alternating Cool White/Warm White Fluorescent Lights, Vertical and Centred, 1973). As the installations were declared as sculptures, they were thereby subject to import VAT at 5%. However, HM Revenue & Customs (HMRC) claimed that the works could not be categorized as ‘sculpture’ for import purposes under EU customs law, on the grounds that the relevant import category for these works was ‘electrical devices’ (which covers ‘image projectors’ and ‘lamps and light fittings’). Hence they would be subject to both customs duty and the full rate of VAT. To the gallery’s dismay, HMRC also argued that VAT and customs duty were payable on the full value of the installations declared by Haunch of Venison at the time of import (as works of art) as opposed to the far lower value of the component electrical parts.

At trial, HMRC argued that the art works were not sculptures when disassembled into their various component parts and crated for shipping, also suggesting that the artistic element of Viola’s work was limited to the digital video data or the flat image projected onto the video screen. In other words, that Viola’s work lacked the three-dimensional qualities necessary to be regarded as sculpture. Haunch of Venison, however, contended that as a matter of EU customs law (and on the facts), the installations should be treated as being sculpture upon importation. The gallery pointed to earlier favourable precedents, including both the Brancusi trial and the classification by the European Court of Justice of a Claes Oldenburg imported into Germany as a work of sculpture (Reinhard Onnasch v Hauptzollamt Packhof, 1985). US tax authorities had also confirmed that they would treat the works of Viola and Flavin as sculpture upon importation into the US.

The major problem for commercial galleries when importing contemporary art works into the UK is that there is currently no general custom category for art works under EU custom law. While there is a general custom chapter headed ‘works of art, collectors’ pieces and antiques’, known as Chapter 97, in order to fall within this the imported art work must fit within a certain sub-category: ‘painting’, ‘print’ or ‘sculpture’. The absence of a residual category for artistic works (similarly to the absence of such a category under UK copyright law’s definition of ‘artistic works’) within this traditional classificatory structure presents potential difficulties for contemporary work such as conceptual art and installations. If the art work being imported does not easily fit within one of the sub-categories, the risk is that HMRC will argue that the imported art work is not covered by Chapter 97, but by another chapter. Despite these risks, disputes with HMRC are rare.

At trial, witnesses for Haunch of Venison included Sandy Nairne, director of the National Portrait Gallery, Martin Caiger-Smith, independent curator and art critic, and Robert Cumming, writer and art critic. Each explained why Viola and Flavin’s installations should be treated as sculpture in the expanded field, emphasizing the way in which Viola specially customizes digital video equipment as well as his precise installation instruction that emphasize their three-dimensional qualities. HMRC had conceded during the trial that Flavin’s work was a sculpture when assembled (though not when it was disassembled!). The tribunal took this evidence into consideration and accepted that sculpture has expanded considerably to encompass contemporary art forms including video installations. Accordingly, they decided that the works of Flavin and Viola should be treated as sculpture at the time of importation, rejecting HMRC’s argument that, whilst the installations may be works of art when assembled, they were not when unassembled or disassembled and packed into crates at the time of importation. The tribunal, ‘[regarded] it as absurd to classify any of the works as components ignoring the fact that the components together make a work of art.’

As with the trial of Brancusi v United States, the tribunal took into consideration how the art world (rather than the general public) treats works of contemporary art. The Haunch of Venison trial provides a modern-day precedent for art galleries and organizations to rely upon when seeking to import the work of international contemporary artists for sale into the UK. The gallery’s success in defending the status of these art works has clarified the treatment of video installation art and contemporary sculpture generally, for the benefit of the British art market. Withers LLP acted for Haunch of Venison

Daniel McClean is head of art and cultural property law at Howard Kennedy LLP, in London, UK. He is also a writer and curator.