Can Chris Ofili turn a crude and pornographic picture of interlocked genitalia into art just by cutting it out and fixing it to a canvas? Perhaps, says Bill Thompson, but only if he really means it.
It was in March this year that police from Scotland Yard?s Obscene Publications Unit visited the Saatchi Gallery in London and threatened legal action unless two photographs by Tierney Gearon were removed from public display.
The images, both large portraits of Gearon?s two young children playing while naked or partly naked, were for a short time the focal point of a national debate on the exact nature of child pornography which highlighted yet again the gulf that exists between artists and the people, at least as far as ?the people? are represented by the editors of tabloid newspapers.
While some papers - most notably The Guardian - published the photographs to highlight what they saw as heavy-handed police action against material which was challenging but not obscene, other papers took a different stance. The News of the World printed them with black bars over the children?s genitals, clearly illustrating its editorial line that this was no more than child pornography masquerading as art and that its readers must be protected from such obscenity.
A fine line
The distinction between art and obscenity remains key for all those involved in the arts. It is especially relevant to those who run galleries and venues since they could easily find themselves having to decide whether to defend works they display or present.
In many countries the issue simply does not arise. State censorship on religious or social grounds takes the decision-making process out of the hands of the artist or administrator. But in Europe and, especially, the United States, things are less clear.
For example, in September 2000 the Brooklyn Museum of Contemporary Art was host to Sensation, the touring exhibition of work by modern British artists owned by Charles Saatchi that had done such good business at the Royal Academy.
New York?s Mayor, Rudy Giuliani, took exception to one of the works on show.
Chris Ofili?s painting, ?The Holy Virgin Mary? incorporates dried elephant dung and cutouts from pornographic magazines and the Mayor condemned it as blasphemous.
Giuliani campaigned hard to get Ofili?s painting removed from the exhibition, without success. He also failed to withhold $7m in public funding from the gallery. In fact, the publicity generated forced many public figures to come out against the attempted censorship and made it much less likely that a similar campaign would be mounted in future.
Grey areas
Over here the challenge to Tierney Gearon?s work eventually sputtered out after the police decided to take no action, and it is now regarded as a crude attempt by the then newly-installed editor of the News of the World, Rebekah Wade, to generate some publicity for her paper. But it left many people in the arts world, particularly gallery owners, concerned that they could find themselves in a similar situation.
The problem is real, not least because the legal framework governing the area of sexually explicit art is, perhaps inevitably, especially subjective. VAT rules may be complicated, and food hygiene regulations have driven many venue managers to despair, but there is broad agreement on the facts: a VAT invoice is a VAT invoice; and a rat in the kitchen is a bad idea.
Obscenity, however, may be in the eye of the beholder, and if the beholder is a police officer then just being on a gallery wall may not be enough to protect you.
Nonetheless, it is not illegal in the UK - or in the rest of Europe, or the United States - to create material designed to provoke a sexual response in the reader, viewer or observer. You do not even have to claim it has any artistic merit: in the United States the First Amendment offers protection to even the most explicit pornography, while in the UK the publishers of pornographic magazines and videos are legitimate business people who can even, in the case of Richard Desmond, use the profits from their pornographic interests to buy national newspapers.
The one exception is child pornography, where the Protection of Children Act 1978 makes it a criminal office to take, distribute, show or possess an indecent photograph of a child, even if the image has been created on a computer through image manipulation.
Defining obscenity
This does not mean you can do what you want: under the 1959 Obscene Publications Act it is illegal to make and publish obscene material, where something is obscene ?if its effect ... is such as to tend to deprave and corrupt persons who are likely ... to read, see or hear the matter contained or embedded in it.? Of course, our working definition of obscenity relies on current case law rather than any clear definition of ?deprave? or ?corrupt,? and this is what creates many difficulties.
When accused of obscenity, it is possible to argue that publication was for the public good, and this allows the artistic merit - or lack of it - of the work to be taken into account. This was the defence used successfully in the 1960 trial of the publishers of the paperback edition of Lady Chatterley?s Lover, and it means that an artist can do things which, in another context, would be considered unacceptable.
Some may argue that the law has no business at all trying to determine what we can experience, but while we have these laws we need to engage in the debate.
When Chris Ofili cuts up pornographic magazines and takes pictures that might be obscene under UK law and sticks them to his painting he is transforming them, putting them in a context and a place where they mean something different.
The risk is that a judge will decide that their tendency to ?deprave and corrupt? has not been sufficiently dissipated by the process - but that is surely a risk worth taking for one?s art?
Bill Thompson is a freelance journalist and writer, and editor of Dispatched, ArtsProfessional?s fortnightly email e: bill@andfinally.com