Contemporary art Controversies United Kingdom

Flavin and Viola light works ruled “not art”

“Absurd” decision by European Commission means VAT of 20%, rather than 5%

Dan Flavin at the Hayward Gallery in London: to European officials this has no more merit than your kitchen ceiling (Photo: REUTERS/Paul Hackett)

LONDON. In an astonishing move, the European Com­mis­sion (EC) has reversed a decision made in a UK tax tribunal, and refused to classify works by Dan Flavin and Bill Viola as “art”. This means that UK galleries and auction houses will have to pay full VAT (value added tax, which goes up to 20% next year) and customs dues on video and light works, when they are imported from outside the EU. The decision is binding on all member states.

The new classification goes against a victory won in a UK tribunal in 2008 (The Art Newspaper, February 2009, p47). A legal battle began after the Haunch of Venison gallery imported six disassembled video installations by Viola into the UK from the US in 2006, and sought to import a light sculpture by Flavin. Declared as “sculpture”, they would only have been liable for 5% VAT.

But customs rejected this, and charged Haunch of Venison £36,000 duty. In 2008 Haunch appealed, and won: the VAT and Duties Tribunal ruled that such works were indeed “art” and only liable to 5% VAT.

Now the EC has overturned this decision. In its ruling a Flavin work is described as having “the characteristics of lighting fittings…and is therefore to be classified…as wall lighting fittings”. As for Viola, the video-sound installation, says the document, cannot be classified as a sculpture “as it is not the installation that constitutes a ‘work of art’ but the result of the operations (the light effect) carried out by it”.

Art lawyer Pierre Valentin, who at the time represented Haunch of Venison (he no longer does so) commented: “The reasons given by the European Commission for classifying works by Bill Viola and Dan Flavin as, eg ‘projectors’ and ‘wall light fittings’, are extraordinary. To suggest, for example, that a work by Dan Flavin is a work of art only when it is switched on, is comical. The national courts of two member states (the UK and the Netherlands) have considered the classification of video and light installations and both have concurred that they should be classified as art under Chapter 97 of the Common Customs Tariff. One is entitled to ask if the Commission has made a judicious use of its powers when overruling these judicial decisions. The reasons given in the regulation in support of the classification are absurd, and the regulation conflicts with the jurisprudence of the European Court of Justice.”

More from The Art Newspaper

Comments

15 Jan 11
16:54 CET

JOHN WALKER, AUSTRALIA

A question -is the calculation of the size of tax payment due, based upon the market value of non art 'light fittings' OR is it based upon their market value as components of an 'Artwork' ?

28 Dec 10
18:11 CET

ELEANOR SACKLER, PARIS

Absurd.

25 Dec 10
16:45 CET

MARILYN LOWEY, LOS ANGELES

A tribunal decided that Dan and Bill's work are to be taxed as commerce not art. Stop the presses. Allow me a moment to place the toga on while I enlighten you that tof Mr. Flavins art practice was to take an ordinary lighting fixture and sculpt space creating form, comment and content. How can you not call that art? A common viewer can walk around most contemporary collections thinking their kid can do this better, however if they were to stop for a moment and leave at the museum's entrance their "entertain me" attitude they might embrace the light sculptures of pink and yellow flourscent tubes. They are missing the point. Just ask Marcel Duchamp.

25 Dec 10
16:45 CET

CHARLOTTE GALLOWAY, LONDON

Great - VAT on $100 on fluoro tubes and used video equipment - everyone should be happy... What an absurd decision

25 Dec 10
16:45 CET

DANIEL ROTHMAN, VENICE, CALIFORNIA

I think we and they have got it all wrong. All art is lighting. Retinal art is what Duchamp called it. Therefore its viewers should be taxed and art commissioners at a much higher rate for their appropriation of Monty Python.

24 Dec 10
16:21 CET

MIGLENA MINKOVA, LONDON

Endlessly arguing if a piece of work should be considered art or not is not going to solve any problems. The practicality of the issue here is that if that particular piece passes the customs as art than what would be the justification to ask for 20% VAT on any other comercially produced items. If art is the idea that makes you think not the actual physical piece than I dont see any problem paying full VAT for the so called sculpture. Also, If you look at the HM revenue and Customs classification of what art is you will find that the VAT issue is not only executed by the EU but the UK as well...so it comes as a surprise that the work was classified as art in the 1st place.With that I am not saying that HMRC classification is comprehensive enough to classify art but it only deals with the material part of it, and tha is all it should be concerned with. God bless the buyers of contemporary art, if they ever have to pay full VAT!

24 Dec 10
16:21 CET

LOUIS TORRES, NEW YORK

I am no fan of the EC, but in this instance its finding that since Flavin's work has "the characteristics of lighting fittings" it must be classified as "wall lighting fittings" is justified. In other words, it does not meet the characteristics of art (which is true of Bill Viola's work as well). The EC seems to be relying on common sense in this instance, but it has logic on its side. For an objective definition of the term readers may be interested in seeing "The Definition of Art"- http://tiny.cc/Ch6-DefArt - from 'What Art Is: The Esthetic Theory of Ayn Rand' (2000), which I co-authored. - Louis Torres, Co-Author, Aristos (An Online Review of the Arts) - http://www.aristos.org

23 Dec 10
15:48 CET

ROBERT LABOSSIERE, TORONTO

Is this the beginning of a new wave of European protectionism? The tax applies only to works imported from outside the EU, and the decision is from the European Commission. In effect, the EC is saying to UK gallerists: if you are going to import work from outside the EU for sale, you are going to pay 20% of your profits to the government. Given that these are “costs” that cannot easily be passed on to the art buyer (art prices being otherwise determined), that’s a serious disincentive. Are there possible avenues of appeal within the EC system?

23 Dec 10
15:48 CET

JULIANA FARHA, LONDON

Bizarre. I suppose paintings are water + oil + canvas? And frames are sticks of wood? What object, when defined solely by its constituent parts, remains what it is as a whole? Indeed, using the logic of the Viola argument, without the capacity of the human brain and eye to perceive the visual, no art would exist. As for John Skookum, what a thoughtful contribution! If you have such contempt for art and artists, what are you doing on this site? Why not hang out with other anti-intellectual philistines who know nothing about the history of human endeavour?

22 Dec 10
9:44 CET

SETH ADELSBERGER, BALTIMORE

Timothy Emlyn already said all that needs to be said. Its the money they are trying to skim off the top...

21 Dec 10
20:14 CET

TIMOTHY EMLYN JONES, THE BURREN

If the installations are not art and thereby not eligible for the lower rate of tax, then surely they must not to be considered by the relevant tax officers as eligible for valuation as works of art and only for valuation as components of installations. Therefore, the tax that is liable is 20% of the value of the components and not 20% of the value of works of art. It follows the tax officers must settle for far less tax income that would have been paid if tax were 5% of the value of works of art.

21 Dec 10
20:14 CET

LORELEI, PROVIDENCE RI

That's alright... as long as they re-classify Rembrant's works as paint applied to fabric for decorative hanging.

21 Dec 10
10:44 CET

MAX, LONDON

What's the problem? Art is meant to make us think... This will make artists think

21 Dec 10
10:6 CET

DAN, CHICAGO

Not only the 18th century but all centuries up to and including now! Are we not to this day, still arguing the point of what is art? To simplify my comment, any object, thought or action has an intrinsic "artistic" element within it. That is because we humans place that characteristic into it. Further, socially and monetarily, manufactured art is considered of lesser value. To summarize, society has yet to settle into this fact.

20 Dec 10
14:20 CET

ROBERT SPEIRS, TALLAHASSEE USA

When are "lighting fixtures" NOT art? When an officially certified artist says they're not? Why is a court in the business of determining what is and isn't art? If Jackson Pollock can drunkenly spill paint on canvas and call it art, why is all spilled paint not art? Isn't manufacturing lighting fixtures an art? The whole idea of subsidizing art is absurd.

20 Dec 10
13:58 CET

JOHN SKOOKUM, ORACLE, ARIZONA

Why should art receive any special treatment? If anything, it is a diversion of brainpower into unproductive pursuits and should incur MORE tax.

20 Dec 10
9:48 CET

DANIEL, L.A. | MANCHESTER

Constructed or created. Either way, Viola blah

20 Dec 10
9:48 CET

TOM, LONDON

Did they consider if it was an artpiece if it wasn't turned on? Seems it would have/will now be a cutting artpiece about what is art, and taxation on such.

20 Dec 10
9:48 CET

PASSINGBY, HSINCHU

The end of the exceptionalism of art?

19 Dec 10
17:18 CET

PADDY, LONDON

Pablo from Spain. Why does This make you wonder about the English government? Read the article. This decision was made by the EC, going against a decision previsouly made by the English courts. At no point were the English government involved.

19 Dec 10
17:18 CET

ROBERT WILLIAMS, LANCASTER UK

Reductio ad absurdum

18 Dec 10
9:18 CET

SCOTT REDFORD, BRISBANE

I sense a latent humanist romanticism in Dan'd comments but he has a point. But also I would say that Rodin used the very latest bronze casting technologies in his works (espacially The Gates) and Flavin was just following suite. Artsits are always drawn to the latest technologies as its a very 'human' thing to do. Personally I think this whole episode reminds us that the most radical aspect of contempory is, as Baudrillard says, "that any object, any detail or fragment of the material world could exercise the same strange attraction and ask the same insoluble questions as those reserved for a few rare aristicratic forms called art works".

17 Dec 10
15:27 CET

URKEL, PATAGONIA

Dan from Chicago: the 18th century called, they want your mindset back.

17 Dec 10
10:5 CET

DAN, CHICAGO

I think this matter rubs up against the issue of defining what is art. True art is not bound by materials or functions of materials, but rather what is at issue is the rate of development of artistic expression and just plain moving away from the skill of the mind and hand coming together. True there is no difference in principal between Rodin working with clay and Flavin working with lighting fixtures. There is a difference in that a lump of clay is transposed into a thing that represents the human mind, hand and emotion coming together through Rodin. As appose to light fixtures which can be assembled by anyone who can handle a tool and it still ends up being lighting, all be it however groovy it may look. In short the manufactured rubbing up against human achievement.

16 Dec 10
23:35 CET

RAUL DUKE, ST. LOUIS

The light fixtures are part of the piece, therefore, part of the art. And if you want to import the "idea" for a Flavin, and then construct it yourself (a la Sol LeWitt), thats up to the artist.

16 Dec 10
18:37 CET

PABLO, SPAIN

If they do this than anything by Turrell and any other Light or video artist should be forced to the same thing. This whole thing is absurd, and really makes me wonder about the English governments.

16 Dec 10
18:37 CET

ARTIST, SAN JUAN CAPISTRANO

Another reason to disband the EU.

16 Dec 10
16:12 CET

GENEVIEVE, OTTAWA

Flavins are unique in the way that some of the light fixtures and light bulbs are not in production anymore. One has to keep in mind that not all works of art are intended to evolve over time. The constant and fast evolution of technology makes a large number of media-based works “sculptural” especially if the historical context and provenance is a major part of the work. Misrepresenting the work itself and the artist intention becomes a high risk especially if the original equipment and method of presentation is not properly documented.

16 Dec 10
13:52 CET

COLLEEN THORNTON, ALEXANDRIA, VA

Have the artists construct their work from elements bought within the EU, and the galleries can deduct the VAT as part of their business' operating expenses. Why bother to import commercial products as 'art' when they can be sourced locally and then assembled into 'art"? Problem solved.

16 Dec 10
10:27 CET

MICHAEL, COLOGNE

Simply sell the art and the electronic equipment separately.

16 Dec 10
10:10 CET

JMFCD, EDINBURGH

VAT the hardware portion of the cost, not the idea/art.

Submit a comment

All comments are moderated. If you would like your comment to be approved, please use your real name, not a pseudonym. We ask for your email address in case we wish to contact you - it will not be made public and we do not use it for any other purpose.

Email*
 
Name*
 
City*
 
Comment*
 

Want to write a longer comment to this article? Email letters@theartnewspaper.com

 

Share this