Art or Lighting Fixtures? You Decide!
"Should five percent appear too small, / Be thankful I don't take it all!" So quoth The Beatles in "Taxman" - and, it turns out, so say tax officials at the European Commission, who have declared that light sculptures by Dan Flavin and video installations by Bill Viola ought to be taxed as lighting fixtures and audio-visual equipment, respectively, rather than as artworks. As a result, they'll be taxed not at the EU's 5% rate on artworks, but at the VAT (value-added tax) rate of 20%. According to The Art Newspaper, "The art world has reacted with astonishment."
A Flavin sculpture from 1976.
Tax officials aren't saying that the artworks aren't art, exactly - only that they don't count as art when they're disassembled (which they have to be, necessarily, to be moved from place to place). A Flavin work, once it's taken apart, has “the characteristics of lighting fittings... and is therefore to be classified... as wall lighting fittings.” About Viola's video installations, they write that "it is not the installation that constitutes a 'work of art' but the result of the operations (the light effect) carried out by it." (You have to love those scare quotes.) That is, the video projectors are just video projectors; it's only the projections which count as art. Once the installation is turned off, it's no longer an artwork, but just a bunch of surprisingly expensive audio-visual equipment.
The whole kerfuffle started when a London gallery, the bizarrely named Haunch of Vension, decided to import some works by Viola and Flavin, who are Americans. The gallery declared them artworks, but British customs decided to classify them as lighting fixtures and electronic equipment instead, charging the gallery tens of thousands of pounds in import duties. The gallery appealed the decision, calling the director of Britain's National Portrait Gallery as a witness, but now the European Commission has overturned that decision, gratifying curmudgeons everywhere who have always felt that Flavin's works were just a bunch of fluorescent lights arranged in a shape.
Today's controversy is actually a virtual repeat of a similar one from the 1920s: back then, the Romanian sculptor Constantin Brancusi tried to import his sculpture "Bird in Flight" to the United States without paying duties, since works of art could be imported duty-free. The abstract sculpture, unfortunately, didn't look like one to the customs inspector: according to an article in Time,
Brancusi's bird had neither head, feet nor feathers. It was four and a half feet of bronze which swooped up from its base like a slender jet of flame. Customs Inspector Kracke said it was not art; merely "a manufacture of metal... held dutiable at 40% ad valorem."
With help from his friend Edward Steichen and from Gertrude Vanderbilt Whitney, founder of New York's Whitney Museum, Brancusi appealed and got the customs duties refunded. The Customs Court ruled, somewhat circularly, that his sculpture was "a work of art by reason of its symmetrical shape, artistic outlines and beauty of finish."
Will the same happen in this case? Unfortunately, the gallery has exhausted this route of appeal, and any further challenges will have to happen in Britain's national court system, incurring a whole new round of legal expenses. One affected importer will be St. Paul's Cathedral - it plans to permanently install altarpieces designed by Viola later this year. Perhaps the definition of art will be sorted out by then.
