Defining art is both hard and subjective. But in lots of contexts the law must arrive at a just solution to hard and subjective questions. The art community has largely neglected the task of defining artworks. This neglect has crept into legal disputes, particularly those involving conceptual art which has loosened the limits of aesthetics, form, function, and composition. This makes crafting a definition of art even more challenging. Yet the Law has an important part to play in resolving art disputes—courts end up defining art no matter how cautiously they approach the question. They do not set out to do so, and in fact they do all they can to avoid acting as art critics. But paradoxically this creates inconsistent judicial reasoning. The solution offered here, is to acknowledge this critical function, and encourage courts to engage with the visual arts community, and for the arts community to engage back.
Derek Fincham, How Law Defines Art, 14 J. Marshall Rev. Intell. Prop. L. 314 (2015)