BOOK REVIEWS 333

Paul Kearns,The Legal Concept of Art, Oxford: Hart Publishing, 1998, xv + 216pages.

The case ofBleisteinv. Donaldson Lithographing Company(188 U.S. 239 (1903))revolved around the question of whether an advertising poster was “art”, and inturn whether its creator was entitled to copyright. In delivering the opinion ofthe court, Holmes J remarked, “it would be a dangerous undertaking for personstrained only to the law to constitute themselves final judges of the worth of pictorialillustrations, outside of the narrowest and most obvious limits”. But as Paul Kearnsmakes clear in this valuable book, the “dangerous undertaking” simply cannot beavoided. “Taste is exercised but not admitted” (59).

The Legal Concept of Artconsists of a series of mostly self-contained essays onhow various aspects of the law – copyright, trusts, customs and international move-ment of art, defamation, obscenity – conceive of art. Kearns restricts his attentionto non-motion visual art and creative literature, and to the laws of the U.S., theU.K., and France. His concern is not that the law will have different definitions ofart in its different branches. That much is to be expected. Rather, “the basic sourceof legal difficulty when art comes before the courts is the lack of concerted legalattempt to systematise how to treat it” (98).

A theme running throughout the book is that the courts fail to recognize artas art. Consider for example the laws regarding defamation. Can a novel defamesomeone? A novel makes no claim to be factual, and neither can it be held torepresent an “opinion”. Kearns laments that courts misunderstand, or do not at-tempt to understand, the nature of fiction as art. A possible solution is to allowgreater scope for expert opinion. This is especially the case where a work of artruns counter to “public morality”. Judges must view works of art with legal eyes;they do not read or view a work before the court for pleasure. This cannot help butcolour how they see a work, and so it is inevitable that works are judged out ofcontext.

Kearns seldom speaks directly to the concerns of economists, but the issuesraised are certainly ones that economists have considered. Indeed there were a fewplaces in the book where the “law and economics” approach would have beenworth consideration. One example is the definition of art for purposes of copyright.Court cases have often involved whether a creation is a “work of artistic crafts-manship”, which entitles the creator to copyright, or instead an industrial design,which confers a generally less valuable form of intellectual property. One approachto defining “artistic craftsmanship” in this context would be to ask for what sort ofworks would the granting of the strong intellectual property right of copyright bemost beneficial to the wealth of the nation. A second example is the public displayof “controversial” works of art. A good example of the economic approach to thisproblem is the judgement by Richard Posner, here in his role as Circuit Judge, inthe case ofPiarowskiv. Illinois Community College District 515(759 F 2d 625 (7thCir. 1985)). Piarowski claimed his right to free speech was being unfairly curtailed

334 BOOK REVIEWS

when the community college which employed him as head of the art departmentasked him to remove some of his controversial art from a busy location on thecampus. Posner takes a Coasian approach to this externality, asking what were theleast costly alternatives, and so finds a way of balancing the goal of free expressionand the goal of the college to maintain some control over its spaces. Kearns citesthis case, but does not discuss it in any depth.

In many cases judges have claimed they do not want to make aesthetic judg-ments, that they are not qualified. But art cannot be defined without such judg-ments. This is especially so in our contemporary world. “There used to be boundsto what was art; now that the boundaries are gone, and we have only the self-labelling artist rather than a standard for art, the law finds it difficult to justifyimposing quality standards on what is now a culture independent of standard”(84). Kearns believes the law must accept that it must impose standards, and shouldbegin to approach the task systematically: “unfortunately for legal purposes at least,. . . , the word ‘artistic’ cannot be confined exhaustively by other verbal formulae.Moreover, its application cannot be a matter of the application of language alonewhen it, possibly more than any other, is a term of taste, not only an adjective thathas to be applied to a noun but a quality that has to be felt of a thing. . . ” (72–73).

I learned a great deal fromThe Legal Concept of Art, and would recommend ithighly to any cultural economist whose research touches on legal issues. It is alsoa pleasure to read; Kearns brings a great deal of learning on aesthetics, history, andlaw to his work, and is a forceful advocate who sees himself as adopting “the roleof defence counsel for art, even when it may appear that the art is in bad taste”(vii).

MICHAEL RUSHTONUniversity of Regina, Canada