Commissioned Work of Art
What I do is art. I am an artist, and as I said on national TV, "flesh is my medium." That bill that was passed, 'art because I say it's art,' back in the thirties ... As an artist, and a self-proclaimed artist in what I do in my area of art, I am guaranteed my art by the first amendment. Everyone that I perform art on does it very willingly and it's their choice.
While many artists (including myself) since the 1960s (or since Dada?) have argued the idea that the definition of art is in the eye of the beholder (i.e., "it's art if I say it's art"), it does not follow that simply saying "this is art" protects a work of expression. For example, many court cases have been fought to determine the line between art and pornography (or in the case of artists such as Sally Mann, child porn).
Art law is still a relatively new field, and practitioners should not expect to be instantly protected simply by saying, "but I'm an artist and I have rights." Legally, states are still deciding where they draw the line between "expressions of artistic merit" (Constitutionally protected free speech) and "obscenity" (not protected). A number of states have ruled that body art (in any form, including tattooing) is not speech or art at all. As recently as 1998, the US Supreme Court has upheld the notion that obscenity (art without "redeeming social importance") is not legally "art."
The current "standard of obscenity" boils down to a three-part question:
- Would the average person (i.e. "community standards") believe the work appeals to "prurient interest?"
- Does the work depict or describe offensive sexual conduct?
- Does the work lack serious literary, artistic, political, or scientific value?
At first glance, it might seem like bodyart should be an instant "of course it's art," but like so many other things that are court-determined, ultimately it boils down to the whims of the judges and the amount of money you have to spend.