In a Richmond, Virginia courtroom in November of 1982 I witnessed an entertaining scene in which an age-old question — what is art? — was hashed out in front of a patient judge, Jose R. Davila, who seemed to thoroughly enjoy the parade of exhibits and witnesses the attorneys put before him. The gallery was packed with art students wearing paint-speckled dungarees, gypsy musicians and film buffs.
The defendant was this story’s teller. When I got charged with a misdemeanor for posting a handbill I had designed promoting the premiere of a new feature, “Atomic Cafe,” it was a bust I deliberately provoked. At that time I was determined to beat the City of Richmond with a freedom of speech defense.
The flyer had been posted on a utility pole near VCU’s campus. Rather than pay the small fine for breaking the City’s law forbidding such posters on poles in the public way, as the theater’s manager I opted for a day in court. My defense attorneys, Jack Colan and Stuart Kaplan, attacked the statute itself as overreaching.
We asserted that I had a right to post the handbill and the public even had a right to see it. The prosecution called the little poster “litter.”
But it was easy to see that the push behind the City’s crackdown on posting handbills in the Fan District was coming from people who didn’t want rock ‘n’ roll, or alternative cinema, or all sorts of activities close to where they were living. Thus, my trial was one little battle in what was an ongoing culture war in the Fan District in that era.
My case had expert witnesses, David Manning White, Phil Trumbo and Jerry Donato, and about 100 cool handbills in front of the judge, Jose R. Davila. Davila actually seemed interested in the concept we were presenting. We contended that all the flyers put together — on key poles, in certain shop windows and on selected bulletin boards — constituted an information system. Furthermore, that an aspect of the citizenry didn’t always trust the mainstream media, so it frequently relied on information delivered by posters made by people they knew.
We reminded the judge that history-wise, handbills predate newspapers. Moreover, we asserted that the eight-and-a-half-by-eleven, cheaply printed posters were art — a natural byproduct of having a university in the neighborhood.
At the crucial moment, Donato, a popular VCU art professor, was testifying. He was being grilled over just where to draw the line between what should be, and what should not be, considered to be genuine art. The Assistant Commonwealth’s Attorney, William B. Bray, asked the witness if the humble piece of paper in his hand — the offending handbill, which had gotten its creator busted — could actually be “art.”
“Probably,” shrugged the prof. “Why not?”
The stubborn prosecutor grumbled, reasserting that the flyer was no better than “litter.”
Eventually, having grown weary of the high-brow vernacular being slung around by the witnesses supporting my position, the prosecutor tried one last time to trip up the clever witness.
As Warhol’s soup cans had just been mentioned by the art expert, the lawyer narrowed his eyes to ask a question tantamount to: “If you were in an alley and happened upon a pile of debris spilled out from a tipped-over trashcan, could that be art, too?”
“Well,” said the artist, pausing Jack Benny-like for effect, “that would depend on who tipped the can over.”
Donato’s delivery was perfect. The courtroom erupted into laughter. The obviously amused judge fought off a smile.
The crestfallen prosecutor gave up. The City lost the case. Although I got a kick out of the crack, too, I’ve always thought the City’s mouthpiece missed an opportunity to hit the ball back across the net.
“Sir, let me get this right,” he might have said, “are you saying the difference between art and randomly-strewn garbage is simply a matter of whose hand touched it; that the actual appearance of the objects, taken as a whole, is not the true test? Furthermore, are you telling us that without credentials, such as yours, one is ill-equipped to determine the difference between the contents of a trashcan and fine art?”
Yes, the prosecutor gave up too soon because, whether the wise-guy professor admitted it, or not, that is exactly where he was coming from. A smarter lawyer could well have exploited that angle.
Still, the prosecutor’s premise/strategy that an expert witness could be compelled to rise up to brand a handbill for a movie, a green piece of paper with black ink on it, as “un-art” was absurd. So, the wily artist probably would have one-upped the buttoned-down lawyer, no matter what.
Perhaps the question shouldn’t have been — how can you tell fake art from real art? After all, any town is full of bad art, and good art, and all shades of in-between art. Name your poison.
Isn’t it better to ask — what is worthwhile or useful art?
Then you become the expert witness.
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