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 named Jose R. Davila. The judge seemed to thoroughly enjoy the parade of exhibits and witnesses the defense attorneys put before him. The room was packed with observers, which included plenty of gypsy musicians, film buffs and art students wearing paint-speckled dungarees.
The defendant in this freedom of speech case was this story’s teller.
When I got charged with a misdemeanor for posting a handbill I had designed that promoted 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 and knock out the statute prohibiting the posting of flyers on utility poles.
The little poster had been stapled to a pole near the Virginia Commonwealth University campus. Rather than pay the small fine for breaking The City’s law forbidding such advertising in the public way, as the Biograph’s manager, I opted for a day in court. My defense attorneys, Jack Coaln and Stuart Kaplan -- who were also my good friends -- attacked the wording of the statute as “overreaching.”
They asserted on my behalf that it was my right to post the handbill, plus the public had a right to see it. The prosecution called the handbill “litter.”
Beyond the wording of the statute it was easy enough to see the real push behind The City’s crackdown on posting handbills in the Fan District was coming mostly 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 day in court was one little battle in what had been an ongoing culture war in the Fan District in that era. Some of the Fan’s property owners wanted to get rid of much of the commercial activity in the densely populated neighborhood, especially the restaurants/bars.
The expert witnesses/friends who testified to support my case were David Manning White, Phil Trumbo and Jerry Donato. White had been the chairman of VCU's mass communications department. Trumbo was the best known handbill artist in the Fan. Donato was a painting and printmaking professor at VCU.
We also entered into evidence 100 cool handbills by a variety of artists. We contended that when such flyers appeared on key utility poles, in certain shop windows and on selected bulletin boards, they constituted an information system. We said that an aspect of the citizenry didn’t always trust the mainstream media, especially the daily newspapers, so it frequently relied on information delivered by posters made by people they knew.
The judge was reminded that history-wise, handbills predate newspapers. Furthermore, we asserted that the eight-and-a-half-by-eleven, cheaply printed posters were art — a natural byproduct of having a university with a burgeoning art school in the neighborhood.
At a crucial moment, Donato was being grilled by the prosecutor 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, could actually be “art.”
“Probably,” shrugged the prof. “Why not?”
The stubborn prosecutor grumbled, reasserting that it was no better than trash in the gutter.
Eventually, having grown weary of the artsy, high-brow vernacular being slung around by the witnesses, the prosecutor tried one last time to make Donato look foolish.
As Warhol’s soup cans had just been mentioned by the art expert, the prosecutor asked something like, “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 momentarily, Jack Benny-like for effect, “that would depend on who tipped the can over.”
Donato’s punch line was perfectly delivered. The courtroom erupted into laughter. Even the judge had to fight 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? Would you have us believe that without credentials, such as yours, one is ill-equipped to determine the difference ordinary trash and fine art?”
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, Donato, who was a wily artist if there ever was one, 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, mediocre art and good art. Name your poison.
The better question to ask is whether the art is worthwhile or useful. Then you become the expert witness. However, when it comes to great art, it still depends on who tips the can over.