The article addresses the issue of distinguishing the works of art from non-art
in cases of civil litigation concerning a conflict between artistic freedom and
other constitutionally guaranteed rights and interests.
The article addresses the issue of distinguishing the works of art from non-art
in cases of civil litigation concerning a conflict between artistic freedom and
other constitutionally guaranteed rights and interests. The question mentioned
is of particular importance for further step of the judicial review, i.e. weighing
and judicial evaluating of the circumstances of the individual case which
must take into account the specificities of the artistic genre or artistic form
of expression to which the work belongs. The author presents in particular
the German constitutional doctrine which gives the term »art« a broad definition.
Furthermore, the article addresses the issue who has a decisive role when
distinguishing works of art from non-art in cases of judicial review: should it
be decisive an opinion of an expert, a perception of an average user or an art
connoisseur or a perception of the author himself or herself.
Key words: Constitution, freedom of artistic creation, notion of art, collision
of basic rights, German doctrine