§ Issue: whether Ds can sell their ‘graffiti’ style hats and clothing without a permit
· The court asks what is the dominant motive of these ‘artists’?
o Expressive or non-expressive?
§ Court finds that the P’s work is mainly expressive
· However, the court does not stop there. It then asks other factors:
o 1. Whether an artist’s stated, motivation for producing and selling an item is his desire to communicate ideas
o 2. Whether a vendor purports, through the sale of goods to be engaging in an act of self-expression rather than a mere commercial transaction
· The court said that these graffiti style hats and clothing is art, but not one of the types of art mentioned in the law [Bery]
o It is not a painting in the Bery sense
o Court refuses to adopt the broad meaning of painting meant to be anything to which pigment has been applied
§ This would transform an exception that would make virtually all goods exempted from the law
· Clay cooking casserole
o Is it art?
o Is it copyrightable?
§ NO [without more info, like if its unique]! But it is patenable!
o Fine art? Qualify for loft housing?
§ Would probably need more info
o Expressive? Can you sell on the streets without permit?
· Is it any different if this casserole was used regularly to burn incense?
· Is it any different if its 2000 years old?
o YES! It will come in duty free
§ The law says that if something is more than 80+ years, then it comes in duty free
o Something that is that old tells us something that belonged to that era and tells us something about that era. It has cultural, educational and maybe religious significance