Edit Module
Edit Module
Edit Module
Edit Module

This Is What Happens When Courts Decide What Is and Isn’t Art

Cook County says DJing doesn’t qualify as “fine art,” and they could collect some hefty taxes for it. But it’ll be an uphill battle against history, taste, and case law.

Frankie Knuckles making what is considered fine art in the City of Chicago but not Cook County.   Photo: Robert J. Downey/Chicago Tribune

You have by now probably heard that Cook County is attempting to collect back taxes from small music venues, under the idea that the various forms of music they present are not “fine arts,” and thus are not exempt from the county’s three-percent amusement tax.

The ordinance itself is pretty simple.

1. The tax is not imposed upon: “The admission fees to witness in person, live theatrical, live musical or other live cultural performances that take place in any auditorium, theater or other space in the County, whose maximum capacity, including all balconies and other sections, is not more than 750 persons.”

2. The above is defined in the ordinance as: “a live performance in any of the disciplines which are commonly regarded as part of the fine arts, such as live theater, music, opera, drama, comedy, ballet, modern or traditional dance, and book or poetry readings. The term does not include such amusements as athletic events, races, or performances conducted at adult entertainment cabarets (as defined in Section 14.2.1 of the Cook County Zoning Ordinance).”

The city and county do specifically levy the amusement tax on strip clubs, not allowing them the small venue fine arts exemption, and the Illinois Supreme Court backed that decision in a ruling. But two Duane Morris lawyers make an interesting case that the Supreme Court’s decision, which overturned an appellate court decision in favor of the strip club, was wrongly decided. Either way, it’s an example of how tricky even the most outré case is.

The question right now before the county is even more difficult: whether venues like Beauty Bar and Evil Olive are exempt from the tax because they present fine art. In the Reader, Lee V. Gaines reports that the county “appears to be targeting venues that routinely book DJs or electronic music.”

But in a follow-up, the language used by the judge, Gaines reports, suggests that the door could be opened much wider. But it also shows how the effort could fall on its face:

“Rap music, country music, and rock ‘n’ roll” do not fall under the purview of “fine art,” [the county’s hearing officer, Anita Richardson,] explained.

[snip]

“[The venues’] argument is honestly a stretch," Richardson countered. “I’m going to be looking for some rather persuasive legal arguments that will persuade me . . . that all music falls within the category of any of the disciplines regarded as fine arts.”

In response to this article, a spokesman for the Department of Revenue said Friday* that Richardson’s statements do not represent the position of the Department of Revenue, which is only concerned about DJ performances. “It does not matter what type of music is played,” he said, “The question presented … is whether the actions of DJs constitute a live performance. DOR makes a distinction between a DJ who solely plays pre-recorded music and one who performs by creating music during the event.”

But it doesn’t explain why, at the status hearing, Richardson told the attorneys for the venues that they’d have to supply “expert musicologists” to “further testify the music you are talking about falls within any disciplines considered fine art.”

Here’s how Dawn Rhodes quoted her in the Tribune:

“I think you’re going to be hard-pressed to prove that the (county) commissioners meant for rap music to qualify as the fine arts. None of the definitions that I’ve come across have included the activities of DJs doing what they do as fine arts.”

It doesn’t seem that hard, actually. Here, watch.

Let’s go back to the ordinance. This part is important:

a live performance in any of the disciplines which are commonly regarded as part of the fine arts, such as live theater, music, opera, drama, comedy, ballet, modern or traditional dance, and book or poetry readings

Richardson seems to be taking the stance that rap, country, rock, and electronica are not “fine art” because… well, maybe because they’re popular. Or bad. Or something. But fine arts does not necessarily mean elite arts or whatever definitions Richardson has read. Fine arts is in large part a historical categorization, and it’s unsurprising that the Cook County ordinance lists the disciplines it does. Paul Oskar Kristeller, in his momentous essay “The Modern System of the Arts: A Study in the History of Aesthetics,” defines them as such:

Although the terms “Art,” “Fine Arts” or “Beaux Arts” are often identified with the visual arts alone, they are also quite commonly understood in a broader sense. In this broader meaning, the term “Art” comprises above all the five major arts of painting, sculpture, architecture, music and poetry. These five constitute the irreducible nucleus of the modern system of the arts, on which all writers and thinkers seem to agree. On the other hand, certain additional arts are sometimes added to the scheme, but with less regularity, depending on the different views and interests of the authors concerned: gardening, engraving and the decorative arts, the dance and the theatre, sometimes the opera, and finally eloquence and prose literature.

The “fine arts,” in essence, are a non-utilitarian form of production, as Larry Shiner, a professor emeritus of philosophy and art history at the University of Illinois, describes:

The big change in art’s definition came when all those human arts got split up into various kinds: the first split was the opposition between the liberal arts and what the ancients called the “servile arts” (which was later replaced by the “mechanical arts”). That polarity was very different from the modern one contrasting the “fine arts” to the “applied arts,” “commercial arts,” or “craft arts.” The old schema of the liberal arts included what we call sciences and mathematics as well as the humanities. Part of what distinguishes the “fine arts” as a category of classification is that things like painting, poetry, architecture, music, and theater were pulled out of the old liberal arts and made into a separate category.

Which is… pretty much what the ordinance does.

Obviously people can and do try to distinguish “fine arts” from “popular art,” and if the Cook County Department of Administrative Hearings really wants to get into Adorno or whatever then perhaps that’s what law and revenue demands. But there be dragons. Shiner concludes his study The Invention of Art: A Cultural History with this:

We cannot resurrect the old system of art. Nor can we simply wish away the break that split apart the old system of art, arrogating intellect, imagination, and grace to fine art and disparaging craft and popular culture as the realm of mere technique, utility, entertainment, and profit. Like other dualisms that have plagued our culture, the divisions of the fine art system can only be transcended through a continuing struggle.

The courts, much less county-level administrative departments, are not especially equipped for this struggle, and they tend to avoid it for what should be increasingly obvious reasons. Maybe Andrew W.K. (who DJ’d Beauty Bar in 2014) does not represent “intellect, imagination, and grace,” but what do you do with Ellen Allien? She DJ’d there in 2008, behind her album Sool, which was reviewed by Pitchfork as such:

Still, as minimalist manifestos go, Sool is strident, and some listeners might wish Allien hadn’t done such a good job of it—it asks for a lot, and metes out its rewards slowly. But I find it to be a profoundly articulate conceptual space, both rudimentary and complex, composed of more nothing than something. That “nothing” can be disorienting to wade through, and we’re lucky to have Allien, one of techno’s most confident producers, as our guide.

If “fine arts” are “‘refined and intellectualized pleasure’ enjoyed in a spirit of ‘disinterested contemplation,’” per Shiner, is Ellen Allien fine art?

There are bigger pitfalls to the parsing of “fine art” by crude genre categories. Shiner again:

But to elevate some genres to the spiritual status of fine art and their producers to heroic creators while relegating other genres to the status of mere utility and their producers to fabricators is more than a conceptual transformation. And when the genres and activities chosen for elevation and those chosen for demotion reinforce race, class, and gender lines, what once looked like a purely conceptual change begins to look like an underwriting of power relations as well.

Rap, electronica, country, and rock—as compared to, say, classical, the stereotypical “fine arts” musical genre—originated on the margins in large part because of their economic and social accessibility. (I’m sure jazz would fly as a fine art these days, but given its cultural history it’s a pretty awkward example.) Chicago’s distinctive house music sound, as I wrote in 2014, was basically disco for people with no resources.

You could keep going down this rabbit hole. Or, you could stick to common definitions that fit on a notecard. Or on a Post-It note, like from Merriam-Webster (“art [as in painting, sculpture, or music] concerned primarily with the creation of beautiful objects"), or the Encyclopedia Britannica (“modes of expression that use skill or imagination in the creation of aesthetic objects, environments, or experiences that can be shared with others").

Courts don’t usually get into parsing these distinctions—doing so gets really old fast—a precedent that goes back a long ways to the 1903 Supreme Court case Bleistein v. Donaldson Lithographing Co. The case itself was incredibly picayune for something that made its way to the highest court in the land: the Bleistein in question ran a lithographing firm that designed posters for a circus. The circus ran out and had another firm make more from Bliestein’s firm’s design. They said, hey, that’s ours, and won. It’s a copyright case, but it was based on high/low distinctions in art (and expanded the protection of the law to increasingly give the low the protection of the high):

In class terms, the circus posters at the center of Bleistein were controversial in three interrelated ways. First, they were advertisements (a form that many at the time felt should be excluded from copyright law or covered instead by trademark law) for a demotic (or “lowbrow”) form of popular entertainment. Second, the posters were mass-reproduced by means of lithography at a time when even the status of artistic photographs of “dignified” subjects remained in question: how exactly, courts continued to ask, was the operation of a camera an act of “authorship”? Third, the posters were possibly vulgar or offensive in their depiction of humans in states of near-nudity. [Justice Oliver Wendell] Holmes wrote in a letter to a friend about the case: “I fired off a decision upholding the cause of law and art and deciding that a poster for a circus representing decolletes and fat legged ballet girls could be copyrighted. [Justice John Marshall] Harlan, that stout old Kentuckian, not exactly an aesthete, dissented for high art.”

Holmes’s conclusion is famous: “It would be a dangerous undertaking for persons trained only in the law to constitute themselves final judges of the worth of pictoral illustrations…. [I]f they command the interest of the public, they have a commercial value—it would be bold to say that they have not an aesthetic and educational value—and the taste of any public is not to be treated with contempt.”

After Bleistein, courts’ treatment of these aesthetic issues has been wonderfully described as a “doctrine of avoidance.” But it does have to happen, and the legal scholars Robert Kirk Walker and Ben Depoorter, writing in the Northwestern University Law Review, propose a “Community of Practice,” a combination of experts and knowledgeable laypeople that’s not too different from what the Department of Administrative Hearings is asking for:

While the exact parameters of the Community of Practice standard proposed here are novel, precursors can be found throughout copyright law, most notably in Arnstein v. Porter. 233 There, to determine whether well-known songwriter Cole Porter infringed on the plaintiff’s songs, the appellate court directed the lower court to consider the aesthetic views of real people (“lay listeners”) in terms of “what is pleasing to the ears of lay listeners, who comprise the audience for whom such popular music is composed.”

If called, I’m happy to do jury duty on whether Ellen Allien is “fine art.”

A “community of practice” is kind of what was used to determine whether the sculptor Constantin Brancusi’s “Bird in Space” was art, in a case closer to what’s before Cook County right now. He brought his sculpture, an extremely abstracted, minimalist impression of a bird, to the United States in 1926 en route to New York and Chicago; U.S. Customs put a 40 percent tariff on it under “Kitchen Utensils and Hospital Supplies” because they judged it wasn’t sufficiently representative to be art. The expert testimony in Brancusi v. United States, like this exchange with sculptor Jacob Epstein, is wonderful:

Justice Waite: Do you consider from the training you have had and based on your experience you had in these different schools and galleries—do you consider that a work of art?
Witness: I certainly do.
J: When you say you consider that a work of art, will you kindly tell me why?
W: Well, it pleases my sense of beauty, gives me a feeling of pleasure. Made by a sculptor, it has to me a great many elements, but consists in itself as a beautiful object. To me it is a work of art.
J: So, if we had a brass rail, highly polished, curved in a more or less symmetrical and harmonious circle, it would be a work of art?
W: It might become a work of art.
J: Whether it is made by a sculptor or made by a mechanic?
W: A mechanic cannot make beautiful work.
J: Do you mean to tell us that Exhibit One, if formed up by a mechanic—that is, a first class mechanic with a file and polishing tools—could not polish that article up?
W: He can polish it up, but he cannot conceive of the object. That is the whole point. He cannot conceive those particular lines which give it its individual beauty. That is the difference between a mechanic and an artist; he (the mechanic) cannot conceive as an artist.
J: If he can conceive, then he would cease to be a mechanic and become an artist?
W: Would become an artist; that is right.

The City of Chicago has avoided getting into this morass by explicitly carving out a place for DJ sets as falling under fine arts for the purposes of the amusement-tax exemption. Like all regulations of art it sounds a bit silly, but it’s also pretty cleverly crafted as these things go. The 2006 ruling basically sets out two tests:

The pre-recorded material used by the DJ was recorded by the DJ. This may be original work composed by the DJ or the work of other artists that the DJ has mixed or otherwise modified.

This is an artistic test—did the DJ transform the material somehow?—which is in keeping with the common discourse on DJing-as-art.

The DJ is paid substantially above the rate that would be paid solely for the service of playing the pre-recorded material of other artists. As of the date of the issuance of this ruling, the Department will assume that the payment of $2,000 or more for a single performance qualifies the event for this safe harbor.

And that’s the market test: it’s art if people will pay for it.

If the small venue passes both tests, it’s exempt from the tax. But if it doesn’t, it can still pass it by fulfilling four of five conditions:

  1. The DJ is featured in advertisements for the venue.
  2. The DJ is visible to patrons of the venue, who spend a substantial amount of time observing the DJ’s performance.
  3. The DJ is featured more prominently than other amusements or activities available at the venue.
  4. The patrons are charged substantially above the amount that would be paid for entry into the venue in the absence of the DJ. For purposes of this ruling, the term “substantially above” means at least one and a half times the amount that would be charged without the DJ.
  5. The DJ is represented by a manager and/or agent.

All these are market tests, too. And combined, they’re a shortcut to what happens if you don’t specify these things—bringing in expert testimony to hash out what is and isn’t “fine art.” It is if people’ll pay for it might be awfully reductive, but look at the alternative: you do want to reduce it.

I have no doubt, having taken musicology classes, that the attorneys for the venues can easily find supportive expert testimony. I’d also predict that, given the definitions and the case law, if they did need to fight it out, they’d have a very good case. The question is how much effort the county wants to put forth in treating the taste of the public with contempt.

Share

Edit Module

Advertisement

Edit Module
Submit your comment

Comments are moderated. We review them in an effort to remove foul language, commercial messages, abuse, and irrelevancies.

Edit Module