The aim of this post is to recall a recent and controversial event that has yet to be explained without arbitrary judgment on modern morality. That event was on Tuesday 1st of December, when the Audiovisual Media Services Regulations 2014 introduced restrictions on pornography produced and sold in the UK. The amendment to the Communications Act 2003 effectively censored a list of sex acts by demanding that online pornography adhere to the same guidelines set out by the British Board of Film Censors.
The legislation, which was the result of heavy lobbying, and passed in the name of protecting children from obscene content, has the wider and more repercussive effect of state control of internet content. Those hardest hit are without doubt the independent pornographic producers, but also, without mention, those artists who wish to explore the boundaries of morality through provocative and erotic art.
Without entering into a moral discussion on the pros and cons of the aforementioned legislative changes, the purpose of this post is directed toward a different exploration: whether or not art can be clearly distinguished from pornography. In particular, my aim is to elucidate the different characteristics of art and pornography and explore how the law has obfuscated the ability to clearly distinguish the two. Prior to further analysis I intend to address the difference in meaning of art and pornography in both their ordinary and statutory context. This becomes important as it reveals the inadequacy and futility of the legal attempts to control sexual imagination. The difficulties in distinguishing the two become apparent through inconsistent legal interpretation which has been insensitive to art’s unique, culturally distinct, ontological form that has changed over time.
Instead the law has provided vague and elastic formulae, permitting debates over morality that fit uneasily into the format of a criminal trial. This post will aim to separate art from pornography as far as is possible through an analysis of judicial and ordinary approaches in Anglo-American jurisprudence. In doing so I hope to clarify current and potential tensions arising with the right to freedom of expression and any overlaps between art and pornography.
Ordinary and Statutory definitions
“…In the world, a lot of people know the difference between pornography on the one hand and art, literature… on the other. Such materials are not pornography – and, frankly, everyone knows they are not”. 
Mackinnon and Dworkin’s definition of pornography arises from the feminist civil rights ordinance which is more detailed to place emphasis on “the graphic sexually explicit subordination of women through pictures or words”. This definition is noteworthy, as we will see later, it sheds light on some of the difficulties associated with distinguishing art from pornography due to art’s subversive quality. Needless to say, the word ‘pornography’ enjoys a more definitive definition. Originating from the Greek ‘Pornographos‘ to mean ‘the writing of harlots’. Its agreed categorical effect is that which intends to sexually arouse in the interest of sexual release.
The definition of art on the other hand is not so axiomatic. To begin to understand the complexities in distinguishing art from pornography it is necessary to consider art in its most recent context: ‘Modernism’. It was a particular phase of this movement – ‘late Modernism’ – that became the focus of Post-Modern art. It distinguished between good art and bad art by demanding that good art was determined by self-criticism, self-definition and elimination of elements from other disciplines.
In a post-modern era, however, ‘art’ violates any definition we give it consequently creating dialectic tensions with the law in attempts to apply any one standard. Modern art depends on co-opting, reversing and destabilising words and images rather than creating new original works. Contemporary artists have thus embarked on a wide scale appropriation of political and socially charged issues including sexuality, religion and hate speech.
As Jacques Derrida points out “All destructive discourses… must inhabit the structures they demolish”; art can take a subversive role in appropriating pornography for explicitly activist purposes. Merry Alpern’s work for example employs explicitly sexual images, in particular a series of photographs of prostitutes through the window of a brothel. To some the art would be sexually arousing and for others degrading and even obscene. However the scope of her work is to provoke viewers to consider a feminist point: the exploitation of women who work in the sex industry, and the sexual abuse of women in general.
The difficulty is that through this subversion such art will indadvertently fall into Mackinnon and Dworkin’s definition of pornography and collaterally within the legal realm of obscenity.
The closest definition of art by statutory instrument can be found in s.4 of the Copyright and Patents act Act 1988. An artistic work is to mean, i. a graphic work, photograph, sculpture or collage, irrespective of artistic quality, ii. a work of architecture be it a building or a model, or iii. a work of artistic craftsmanship. The difficulties with such a definition is the ‘artistic quality’ of a work of art as presented in Hensher . The law excludes evaluation of artistic merit from its testing as it is deemed not to be an arbiter of taste. However in Hensher, the Court of Appeal found itself struggling to conclude without considering ‘artistic quality’ to have some aesthetic appeal to the work as well as considering expert evidence and creator’s intentions. One can see then how the law’s disregard for artistic merit would be problematic if hypothetically applied to Rauschenberg’s telegram in 1960 for a portrait gallery, reading: “This is a portrait… if I say so”. The distinction between what is art and what is not in examples like this lies solely in the artist’s intention . It can be argued that assessing artistic intention is outside the scope of the law or at least limited to the art critics and not the judges.
The dilemma then in distinguishing art from pornography from a legal perspective is reduced to the fact that both are not appreciated for their intended unique and distinct qualities. Instead, they are adjudicated by their encompassing ability to ‘deprave and corrupt those whose minds are open to such immoral influences’.
Until recently there was no legislation against pornography, instead the appropriate statutory recourse fell within the parameters of obscenity and indecency,, which has attributed much to the difficulty in separating it from works of art. The Obscene Publications Act 1959 is aimed to prevent decent people from being corrupted as opposed to merely offended. Arguably then the distinction between art and pornography can be drawn by protection of its merit under s.4. Here a work of art that is deemed obscene may be exculpated on the ground that it is in the interests of science, literature, art or learning as a ‘public good’ defence. It seems peculiar then why such protection is not afforded to the common law offence of ‘outraging public decency’ which denies a work of art the possibility to distinguish itself by virtue of any expert opinion. In R v. Gibson the Court of Appeal upheld a public indecency conviction against an artist and proprietor of the art gallery. A work of art by definition of its context in a gallery, in addition to a number of distinguished critics prepared to testify its artistic merit, to deny it such a distinction as ‘inadmissible’ would seem rightfully inappropriate yet it is what followed in Gibson. This case remains an oddity yet it reflects a verdict wholly reliant on subjective moral standards and vague value judgements; as well as any tensions that arise in conflict to article 10 rights to receive and impart information and ideas without frontiers. In Knuller Lord Simon held that “outrage like ‘corrupt’ is a very strong word… goes considerably beyond offending the susceptibilities of, or even shocking, reasonable people”. An alternative approach would be to apply the ordinary meaning of ‘outrage’ and ‘corrupt’ then at least an artist may know within which boundaries he may operate. The subjective and ambiguous nature of these value judgments in effect will only work to chill freedom of expression for fear of prosecution.
It seems then that statutory and common law definitions of Obscenity and Indecency are inconsistent and offer limited insight in determining the difference between art and pornography. The very etymology of ‘obscenity’ itself is disputed. It has no such correspondence to tangible objects and so it remains relative and subjective in describing the reaction of an individual to a certain type of experience. In addition, the Court of Appeal has persistently refused to define the common law offence of ‘outraging public decency’. It becomes problematic then to rely on such indeterminate legal application to effectively distinguish art from pornography when attention is required to recognise the ontological peculiarity of art; and not simply the penumbra of obscene or sexually explicit properties of both.
Judicial and Ordinary Interpretations
“Tell me what’s wrong with words or with you, that the thing is all right but the word is taboo!”
– D.H. Lawrence
There is nothing wrong with recognising that art is different to pornography, their similar qualities however cannot necessarily be imputed to the other.The stubborn Hicklin test entrenched in legal interpretation has made to ‘deprave and corrupt’ mantra in assessing any sexually explicit material. The case Roth v. United States redefined the Hicklin criteria to apply to the ‘appeals of prurient interest’, ‘patently offensive’ with no ‘redeeming social value’ in the light of ‘average, contemporary community standards’. When this was put to the test in Memoirs v. Massachusetts the book ‘Fanny Hill’ was deemed obscene nonetheless. Despite not satisfying the ‘no social redeeming value’ criteria, the court found for the plaintiff on the grounds it could be used solely for its ‘prurient interest’. This shows the courts inability to distinguish that on the one hand we appreciate or relish art, and on the other we consume or use pornography. It is unsurprising then that the leading United State’s case Miller v. California appears to also be inadequate. Judicial attempts to establish a new test of whether the material has any ‘serious’ artistic or literary value offers little protection to contemporary works of art that replace ‘sincerity’ with ‘cynicism’.
It was similarly antagonistic of Byrne J in the prosecution of D.H. Lawrence’s Lady Chatterly’s Lover to instruct the jury to consider the novel dispassionately on the details, emphasising the importance of the moral well-being of the community as a whole over that of self-expression. Judge Woolsey’s position in the earlier ‘Ulysses’ case on the other hand was ethically correct in confirming the importance of the novel’s details. Although “many words usually considered dirty….Each word of the book contributes like a bit of mosaic to the detail of the picture which Joyce is seeking to construct for his readers”.
These two examples demonstrate the inconsistency in interpretation in the law, and that evaluating works of art remains a job for cultural critics and not judges with a conservative moral outlook.
When obscenity distinguishes from pornography by reference to effect however, it follows that art as such is never pornographic. The effect of art is not as specific and immediate as is comprised in the concept of pornography. At most art may trigger a feeling which is already primed, it is argued then in its manner of working, and it ceases to be art. Obscenity then, in relation to art, cannot be localised in intention nor in effect, but only in the expressive substance of the work of art itself.
In the furore caused by the publication of Salman Rushdie’s: the Satanic Verses in 1989, the court failed to acknowledge the appropriate psychic distance involved when approaching the ambiguity of art. In noting that blasphemous libel was not exculpable by virtue of its artistic context, the divisional court failed to see art can incite no “real life” action other than the reader’s psychic reaction. One cannot then reasonably attribute any manifestation of this reaction as the motive of the artist’s self-expression.
Art’s central aim is to evoke feelings, but these feelings are imagined and although reflective in character they are not a reflection of what we do and undergo. What differentiates pornography and art are their central aims, pornography’s aim is distinguished by its categorical effect which requires minimal psychic distance and like advertising or propaganda is promotional in character.
According to Jerold Levinson there is art with a pornographic, or arousing dimension as there is pornography with an artistic, or aesthetically interesting dimension. The line is drawn by virtue of opacity and transparency. Art will demand a cognitive response to its ambiguous and opaque medium which in turn will undermine the level of arousal felt by the viewer. In light of the Philanderer case this would appear to be correct as it was held that pornography has “No message… no thought” and is therefore left to the most basic human reaction. Under this premise art is then distinguished by its culturally, cognitive quality where a relationship is created through a constructive process rather than simply provided through the image.
This distinction is not so clear when the cognitive aspect of the art in question is regarded as pornographic by nature. Klimt’s ‘Reclining Masturbating Girl, Rodin’s ‘Female Nude on All fours’ and more obviously Robert Mapplethorpe’s photography, can all be construed to be as arousing as any pornographic image although their artistic quality is infinitely greater. Arthur Danto went as far as to point out that Robert Mapplethorpe “achieves images that are beautiful and exciting at once: pornography and art in the same striking photographs”. However when Mapplethorpe’s exhibition arrived in Cincinnati in 1988, what was a ‘normal’ exhibition turned out to be the impetus for intense debate on federal funding of the arts and ultimately the focus of an obscenity trail. In this case art was being identified with obscenity or equivalently with pornography, however once the images were placed through verbal description and in a proper and bound context they were no longer publicly controversial or misunderstood.
Context can then be seen as an insightful tool in distinguishing art from pornography. Cutter J in the Tropic of Cancer case stated in a “conscious effort to to create a work of literary art as having significance… prevents treating it as hard core pornography”. In the Sensation and ‘I am a Camera’ exhibitions explicit images that were complained to be have obscene and pornographic qualities maintained their status as works of art through their presence in the gallery. It seems more reasonable to expect an individual in a gallery to engage in some deeper level of thought or abstraction than it is for the Law to attempt to police it.
Art, unlike pornography, is a legitimate culture set apart from the masses. The difficulties in clearly distinguishing art from pornography have stemmed from the very definition and meaning of the words in addition to the subjective and elastic manner by which they have been regulated. As we have seen the rigid structure of the Law does little to compartmentalise ambiguous entities such as art. The very existence of art’s ontological form calls attention to the inadequacies of such structures in the law such as terms to ‘deprave, corrupt and outrage‘in the aim to expand and create new ones.
Vague and inconsistent judgements deemed to regulate on the other hand have proven to provide inadequately for artistic and cultural progression. As Lynda Nead points out, “only by examining the images that hover over the edges of acceptability is the viewer enabled to actively explore the place where meaning is constructed”.
What is clear from this argument is that there is no way to draw a principled distinction between ‘art’ and ‘pornography’; a substantial overlap between them will always exist. The context of a gallery or an adult shop can indicate to what might be expected yet it does not preclude that within small subclasses of these domains collections of work may very well qualify as both pornography and art.
Associate Editor, QMJIP
 Geoffrey Robertson and Andrew Nicol, Media Law Fully Revised 5th Edition p. 194
 Paul Kearns , Criminal Law Review 2007, The ineluctable decline of obscene libel: exculpation and abolition, pp.4
 Media Law Fully Revised 5th Edition. Op. Cit. p.191
 Andrea Dworkin and Catherine A. MacKinnon, pornography and civil rights: A New Day for Women’s Equality (Minneapolis, MN: organizing against pornography, 1988) p. 38-9
 Amy Adler, What’s Left?: Hate Speech, Pornography, and the Problem for Artistic Expression, California Law Review, Vol. 84, No. 6 (Dec, 1996), pp. 1509
 Norman St. John-Stevas, Obscenity And The Law, Secker & Warburg 1956. pp.1
 Jerold Levinson, Erotic Art and Pornographic Pictures, Philosophy and Literature, Volume 29, Number 1 April 2005, pp. 230
 Amy M. Adler, Post-Modern Art and the Death of Obscenity Law, Citation: Yale Law Journal [vol. 99: 1359-1990] pp.1363
 Francis Frascina and Charles Harrison, Modern Art and Modernism: A Critical Anthology, Clement Greenberg in ‘American-Type’ Painting pp.94
 Wallis, Brian. “What’s Wrong With This Picture? An Introduction.” In Art After Modernism: Rethinking Representation. New York: The New Museum of Contemporary Art 1984. pp. 10–13
 Post-Modern Art and the Death of Obscenity Law, Op. Cit. pp. 1378
 What’s Left?: Hate Speech, Pornography, and the Problem for Artistic Expression Op. Cit. pp. 1519
 Ibid. pp. 1502
 Jacques Derrida, La Parole Souffile, in Writing and Difference pp.194 (Alan Bass trans, 1978)
 What’s Left?: Hate Speech, Pornography, and the Problem for Artistic Expression Op. Cit. pp. 1529
 Supra note 5.
 Copyright, Designs and Patents Act 1988
 George Hensher Ltd v Restawhile Upholstery Ltd  AC 64
 The Legal Concept of Art , Op. Cit. pp.66
 Artistic Works, 6 September 2010, A guide to artistic works, http://www.lawdit.co.uk/reading_room/room/view_article.asp?name=../articles/mc-1029-artistic-works.htm
 Post-Modern Art and the Death of Obscenity Law, Op. Cit. pp. 1376
 R v. Hicklin (1868) L.R. 3 Q.B. 360 at 371
 Catherine Itzin, Pornography, Pornography, Women, Violence and Civil Liberties a Radical New View, pp. 401
 Paul Kearns , Criminal Law Review 2000, Obscene and blasphemous libel: misunderstanding art. pp. 1
 Obscene Publications Act 1959
 2 Q.B. 619 (1990)
 Article 10.1, Freedom of Expression, European Convention on Human Rights
 Knuller v DPP  AC 435
 Obscenity And The Law, Op. Cit. pp.1
 Media Law Fully Revised 5th Edition. Op. Cit. pp. 250
 Robert Stecker, Interpretation and Construction; Art, Speech and the Law, 2003, pp. 161
 Abraham Kaplan, Obscenity as an Esthetic Category, Law and Contemporary Problems, Vol. 20, No. 4, Obscenity and the Arts (Autumn, 1955), pp. 550 -551
 354 U.S. 476 (1957)
 383 U.S. 413 (1966)
Erotic Art and Pornographic Pictures Op. Cit. p.229
 413 US 15 (1973)
 Paul Kerns, The Legal Concept of Art, Hart Publishing Oxford 1998, pp. 44
 Post-Modern Art and the Death of Obscenity Law, Op. Cit. pp. 1364
 The Legal Concept of Art , Op. Cit. p 41-42
 United States v. One Book Called “Ulysses,” 2 F. Supp. i82, I84 (S.D.N.Y. 1933), aff’d, 72 F.2d 705 (2d.Cir. 1934).
 Eric Hoffman, Feminism, Pornography, and Law, University of Pennsylvania Law Review, Vol. 133, No. 2 (Jan., 1985), p. 508
 Obscenity as an Esthetic Category, Law and Contemporary Problems Op. Cit. p. 549
 Obscene and blasphemous libel: misunderstanding art. Op. Cit. pp. 3
 Obscenity as an Esthetic Category, Law and Contemporary Problems Op. Cit. pp. 549
 Jerold Levinson Erotic Art and Pornographic Pictures Op. Cit. p 237
 R v. Martin Secker & Warburg 1WLR 1138 (1954)
 Hans Maes, Art or Porn: Clear Division or False Dilemma? pp. 58
 Arthur C. Danto, The Abuse of Beauty: Aesthetics and the Concept of Art (Chicago: Open Court, 2003), pp. 82
 Judith Tannenbaum, Robert Mapplethorpe: The Philadelphia Story, Art Journal, Vol. 50, No. 4, Censorship II (Winter, 1991), pp. 71
 Beth A. Eck, Nudity and Framing: Classifying Art, Pornography, Information, and Ambiguity, Sociological Forum, Vol. 16, No. 4 (Dec., 2001), pp. 605
 The Massachusetts case of Tropic of Cancer
 Nudity and Framing: Classifying Art, Pornography, Information, and Ambiguity, Sociological Forum Op. Cit. pp. 613
Ibid. pp. 607
 Ibid. 608
What’s Left?: Hate Speech, Pornography, and the Problem for Artistic Expression Op. Cit. pp 1507
 Art or Porn: Clear Division or False Dilemma? Op. Cit. pp. 63