When is a painting not a painting? That question has exercised some of Australia's finest legal brains, after a disgruntled artist sued trustees of the country's most prestigious portraiture prize for awarding it to a work that he claimed was a drawing.
Craig Ruddy won the Archibald Prize in 2004 with his powerful depiction of an Aboriginal actor, David Gulpilil, created largely from charcoal. Tony Johansen, who had submitted a portrait of a Sydney drag queen, Carlotta, protested that the winning entry breached the rules of the Archibald bequest, which stipulated that it be "painted".
Mr Johansen, who had entered the Archibald eight times without success, took the Art Gallery of New South Wales to court. This week the judge, John Hamilton, dismissed his application to have Mr Ruddy's work stripped of its award. But he refrained, no doubt wisely, from ruling on whether it was, indeed, a painting.
The Supreme Court had heard two days of submissions from barristers who brandished dictionaries going back to Samuel Johnson to support their rival definitions. Against a backdrop of the offending portrait, which stood propped up against a wall of the courtroom, they argued about whether or not black - the work's dominant tone - was a colour.
The artist himself took the stand to describe how he had first sketched in charcoal on panels of floral wallpaper, then layered over repeatedly with black pigment, aquarelle pencils and acrylic paint. Hairspray and varnish were also deployed by Mr Ruddy, who described his materials as "mixed media" on the entry form.
The case, which intrigued and divided the art world, featured seven barristers, four solicitors and two expert witnesses. One of the latter, a Brisbane art valuer called Michel Sourgnes, was questioned by the gallery's leading silk, Brett Walker, about the Archibald's 1978 winning entry - a triptych made from glue, plaster, pen and ink, a glass eye, a hypodermic syringe and cigarette butts, as well as oil paint.
He asked Mr Sourgnes, who appeared on Mr Johansen's behalf, whether the inclusion of cigarette butts made the work less of a painting. That would depend on the amount of butts, Mr Sourgnes replied, adding that "it could be cigarette butts stuck together with paint".
Mr Justice Hamilton ruled that it was for the Archibald's trustees to determine whether criteria for the £14,000 prize had been met. He observed: "There is a certain appearance of strangeness in courts making determinations concerning the qualities of works of art. That matter is best left to those in the art world."
But while the judge said that opinions differed, he concluded that Mr Ruddy's portrait "cannot be excluded from the category of a work that has been painted".
Mr Johansen's barristers acted for him pro bono, but he may be ordered to pay the gallery's legal costs of up to £200,000. Mr Ruddy welcomed the outcome as "a victory for art in general". He said: "I don't think art should be judged in the courtroom, and that was made very clear today."
The Archibald has been beset by controversy since its inception in 1921. In 1943 two artists unsuccessfully argued in court that the winning work - a portrait by William Dobell of his friend, Joshua Smith - was a caricature. In 1976, John Bloomfield's award was annulled after it emerged that he had painted his subject from a photograph, not from life.Reuse content