To Judge, Poetic License Is Only Kind Artists Need
If Edvard Munch were to appear on the streets of New York City selling T-shirts painted with his celebrated work, “The Scream,” would he be arrested for doing it without a license?
Federal judges do not usually indulge such wild thought experiments. But Judge Victor Marrero of Federal District Court in Manhattan has done exactly that, in a 34-page decision that begins with the simple tale of two men who wanted to sell painted hats on the street and quickly becomes a treatise on the meaning and limits of art itself.
In his decision, issued on Friday, Judge Marrero ruled that the hats the two men have been selling – which they paint on the spot with graffiti-style words and forms – are artwork, however nontraditional. They are therefore protected by the First Amendment, he wrote, and not subject to the city’s requirement that vendors of merchandise possess a license.
[…] In his ruling, Judge Marreo indicated that in his view, not all artwork was protected by the Constitution. For instance, he cited approvingly a recent state case in which a judge ruled that a set of playing cards bearing photographs of Iraqi military and political figures and their names and titles was not sufficient to exempt the seller from the city’s license requirement.
An artistic item, Judge Marreo wrote, “must manifest some communication, that is must express some idea conceived and conveyed from the artist, to merit First Amendment protection.” But he went on to say that no “bright line” separates art that is worthy of such protection from art that is not.
[…] Then there is Edvard Munch, who, if he had tried to sell a T-shirt or hat version of his paintings, would have to be arrested under the city’s too-narrow definition of art, the judge concluded.
From the ruling: Christopher Mastrovincenzo, and Kevin Santos v. The City of New York
Altering the hypothetical above slightly more to fit the facts of the instant case, what if Munch, as his signature wares, chose to paint, at the behest of passersby, his wailing form on t-shirts and ties and to sell them from a sidewalk table? Would his crafts be classified as mere unlicensed merchandise and subject him to penalties? As applied in the case before the Court, Defendants theory would compel that the hypothetical Munch creations would not be works of art, but ties, simply goods for sale, and merely because the medium with the message is a t-shirt, tie or hat rather than a fourcornered canvas. To this interpretation Defendants might reply: Ah, but Munch is Munch. And besides, in the example given, anyone could quickly discern the stylized figure in the tie design and readily tell that it must be saying something. This logic, a derivative of the I-know-it-when-I-see-it test, may be easily dispatched. Should it be a prerequisite for art to be art, that the artist express his thoughts through traditional, perceptually accessible means? The long history of ideas, which records infamous instances of persecution of creative expression, would answer compellingly, for any society that values free speech as much as ours, with an emphatic No. Civilization has traveled too far down the road in the evolution of art as embracing the whole spectrum of human imagination for the law to countenance a classification of an artist s design as art only when imparted in conventional shapes and forms sufficiently familiar or acceptable to a government licensor.
Wonder where copyright fits into this judge’s perspective on expression?
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