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What is the definition of a duty-free "artwork"?

Posted by Giselle Ayala | Jul 05, 2020 | 0 Comments

As the law changes and develops to regulate different aspects of human life, the law needs to borrow concepts from other disciplines, like philosophy, literature, sociology, history, among others. According to Richard Wollheim, British philosopher, art is "one of the most elusive of the traditional problems of human culture". In law, that affirmation is accurate. Art has been defined on multiple occasions to solve issues of constitutional law, copyright, administrative law and importation regulation.

In this context, why is the definition of art so important? Whether a person has created "art" is a fact important to determine the existence of protected speech, whether a building has historic value, or, for purposes of this note, whether a piece of art can enter the United States duty-free.

Under the Harmonized Tariff Schedule (HTS), which is the primary resource for determining tariff classifications for goods imported into the United States, original works of art are exempt from import fees. This means, that goods classified as works of art will not be charged with customs duties.

In this context, the definition of artworks has been a highly debated issue, in fact, courts have sometimes struggled to decide whether a piece of art meets the requirements of the customs' regulations. Since the adoption of the Harmonized Tariff Schedule (HTS) in 1988, most art objects have been allowed free entry without litigation. However, there are still cases in which the media or method of execution of a piece of art may create debate as to whether it should be dutied.

Currently, a work of art can enter the United State duty-free if:

  1. The object created is intended solely for ornamental purposes. Regarding this requirement, courts have focused on whether a work could be classified as decorative or industrial, rather than on the artistic merit of the piece. Works intended for ornamental purposes, which, however, are susceptible to an indefinite reproduction of the original are less likely to be admitted as duty-free works of art.

  2. The object created must be representational. The definition of representational has changed over time. In the early 1900s, courts focused their analysis on art as "fine art" created to represent natural objects or human figures. However, this view changed early with the emergence of abstract and postmodern art. The analysis of the representational character of a work is now focused on the piece representing the view and perspective of the artist who created it.

  3. The object must be the product of an artist rather than an artisan. The works of professional artists rather than occasional artisans are considered works of art for purposes of the customs regulation. Courts have expressed that the value and unique character of a work of art is especially related to the reputation and skill of the professional who created it. Thus, when determining whether an imported good is an "artwork", courts have placed great emphasis on the creator's credentials, i.e. the artist's academic achievements, the public display of its work, the recognition of its work by peers, or by art critics, among others.

  4. The object must not be imported for commercial uses. In determining whether a piece of art is being imported for commercial purposes courts focus on the intent of the receiver of the work rather than on the artist's intent when creating it. This requirement may be the result of concern about the importation of goods that may affect the local art market. Thus, customs duties are imposed to make the purchase of foreign goods less attractive.

Although the definition of artworks may still be the subject of academic and legislative discussions, the adoption of the Harmonized Tariff Schedule (HTS) has settled most of the issues related to the definition of "artwork". Nowadays, most original paintings and drawings, collages and decorative plaques, original prints, engravings and lithographs, sculptures and statuaries, postage stamps, collectors' pieces, and antiques, may be entered duty-free to the United States.

However, it is important to keep in mind that the definition of "artworks" under custom laws reflect the political and economic views of Congress and the judiciary, which may not be aligned with those of other disciplines or areas of law.

If you have a question, or there is an issue of your interest you would like to address, feel free to write to [email protected] Additionally, the Law Office of Giselle Ayala Mateus provides legal research, consulting, and counseling services focused on providing the answers clients need to make informed choices.

About the Author

Giselle Ayala

Giselle Ayala Mateus is a NY attorney with comprehensive experience in transactional law, creative agreements, business formation, and immigration law. She is also the founder of Focus Juridico a not-for-profit project focused on supporting Latin American entrepreneurs and artists.

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