Archibald Prize: Drawing or Painting? By Paul Anderson | November 2006
The Archibald Prize for portraits has been a surprising source of litigation since its inception in 1921. The most recent case involved the 2004 prize winning portrait of the aboriginal actor, David Gulpilil, by Craig Ruddy.
Terms of Will Under the terms of his Will dated 15 March 1916, J F Archibald, the well known proprietor and editor of Bulletin Magazine, who died in 1919, left certain property to the Art Gallery of New South Wales: “to provide an annual prize to be styled “the Archibald Prize” for the best portrait preferentially of some man or woman distinguished in Art Letters Science or Politics painted by any Artist resident in Australasia during the 12 months preceding the date fixed by the Trustees for sending in the Pictures…”
Previous Cases The first and most famous case occurred in 1944 when it was alleged that the prize winning painting by William Dobel of Joshua Smith was not a “portrait” within the meaning of the bequest but a “caricature”. The claim failed. The second case occurred in 1983 when Justice Helsham held that a portrait painted from a photograph rather than life did not fall within the terms of the bequest. In 1985 there was a general challenge to the validity of the Trust as a charitable trust. Justice Powell held that the bequest was for the advancement of education and was therefore a valid charitable trust.
Ruddy Painting The Plaintiff in the proceedings was an artist and unsuccessful entrant for the 2004 prize. His claim was that the winning entry was not a “painting” within the terms of the bequest but a “drawing”. The presiding judge, Justice Hamilton, found it difficult to verbally describe the work in a way that was relevant to the arguments put forward.
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“…The Portrait depicts Mr Gulpilil’s head, shoulders and upper torso…his mass of tangled hair is represented in the portrait by a mass of lines…there are present in the face and parts of the body substantial areas which appear as solid masses of black…the principal impression of the portrait is that it is in black or shades of grey. It is agreed by all parties that black and white are regarded in the art world as colours for the purpose of painting and drawing.” The artist, Craig Ruddy, gave detailed evidence of the process by which he created the portrait. His honour summarised that evidence as follows: “The second defendant has given detailed evidence of the process by which he created the portrait. He says that the principal medium he used was charcoal in various forms, including sticks, blocks and crushed charcoal. This he applied in layers and supplemented, at various stages, with other materials, including acrylic paint, aquarelle pencils, chalk pastels, graphite pencil, ordinary colour pencils, Conte’ sticks and raw black pigment. Initially he applied the charcoal dry, using sticks in a manner similar to a pencil, blocks rubbed against the surface of the wallpaper and crushed charcoal rubbed with his fingers. During the following stages, he built up layers of pigment, most of which was charcoal, but which also included other materials. He moved it around the surface of the wallpaper with his hands and a damp cloth. He sometimes applied hair spray, varnish and water to the work, which assisted in the manipulation of the pigment and allowed him to smudge and blend the line he had created. Of the process he said: “All of the painting except the hair and the raw wallpaper around the sides, was created by mixing and spreading raw pigment with varnish and/or water.” “In some places, this has resulted in large areas of solid black. In other places he has “rubbed back” the layers of charcoal with his hands and a cloth to expose the wallpaper underneath. He also applied acrylic paint with a thick brush, the effect of which is discernible in parts of the portrait, particularly around the cheeks. In the later stages Mr Ruddy added more sweeping lines with graphite and charcoal. Much of the effect of the hair was created with lines drawn with charcoal sticks and blocks, graphite and pencils. This evidence was not significantly detracted from in cross examination and I accept it.”
Experts Each party called a recognised and extinguished art expert. The plaintiff’s expert was of the view that the work was a drawing and the defendant’s expert was equally firm in the view that it was a painting. It also transpired that David Gonski, the president of the Trustees of the Art Gallery of New South Wales, had been conscious of the issue before the prize was awarded and had sought the view of the curator of Australian Art at the Gallery who advised that in his opinion, the portrait was a painting. Ultimately, however, the judge found that the meaning of the bequest had to be determined from the natural and ordinary meaning of the words and that expert evidence could not be used to ascertain that meaning.
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Dictionary Definitions His honour quoted extensively from various dictionary definitions of “drawing” and “painting”. However, he concluded: “A number of remarks may be made about these definitions. These include that the terms are wide in import and of uncertain boundaries. The definitions are on their face somewhat overlapping. It is true that the definitions of “drawing” tend to have an emphasis on line or delineation. They also have an emphasis on monochromatic quality. The definitions of “painting” have an emphasis on the application of colour and particularly, it would seem, colour applied en masse or so as to create an impression of mass. There is some emphasis on the picture being produced by the application of “paint”, which is, in general terms, pigment intimately mixed with a liquid medium. However, it is interesting that the Macquarie Dictionary definition refers to the application of pigment, apparently without a liquid base. The overlaps in the definitions include references to the creation in each case of a “picture” and a reference to delineation in at least one definition of painting, as well as in definitions of drawing. I do not think it goes outside the bounds of judicial knowledge, but is common knowledge, that line drawing is among the techniques used by painters in the course of creating paintings in the strictest sense. I think it flows from the above that the terms are not matters of strict denotation, their boundaries are uncertain and that there are overlaps between them. It is clear that the techniques of each are at times employed in the other. Some works may fall into both categories, as was contemplated by Roper J in the case of portrait and caricature. Whilst the use of black and white or at least monochromatic colour is referred to in definitions of drawing, it must constantly be remembered that all parties are agreed that black and white are regarded as colours in talking of paintings and drawings. Thus a picture painted with a brush and conventional paints would not, by reason of the fact that it is in black and white alone, be excluded from the category of painting.”
Decision His honour cited with approval the reasoning of Justice Roper in the Dobell litigation referred to above. Without evidence of bad faith by the Trustees, the court would not consider whether or not the prize had been awarded to the best portrait. Justice Roper said: “As a matter of construction of the Will, the ultimate right of choice is given to the Trustees, and as a matter of law where the manner of execution of a Trust depends upon the formation by the Trustee of an opinion or the exercise of a judgement this court will not interfere with this exercise unless it is shown that no bona fide opinion was formed nor bona fide judgment exercised. In this suit the award has been canvassed on the ground that the picture in respect for which it was made was not the best portrait, but upon the ground that it was not a portrait at all. In my opinion, however, the question of whether any competing picture is a portrait is as much a matter upon which the judgement of the trustees is invoked as is that of whether it is the best portrait.”
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In this case, Justice Hamilton applied and extended the reasoning of Justice Roper. The opinion formed by the Trustees that the work was a painting could not be set aside by the court unless such opinion was formed in bad faith or without any objective basis. After reviewing the expert evidence and the dictionary definitions, his honour concluded that “minds may well differ as to whether, if the picture must be placed in a single category, that category should be ‘painting’ or ‘drawing’.” His honour did not need to determine whether in fact the portrait was a painting provided that on an objective basis acting in good faith the Trustees could have concluded that it was a painting. The Plaintiff’s claim therefore failed.
Conclusion The judge quite rightly declined to involve the courts in questions concerning the qualities of works of art. Such matters are better left to those involved in the art world. However, given the history of the Archibald Prize and human nature, it is more than likely that in the future some other disgruntled entrant will institute litigation in relation to a winning entry, although the grounds for such litigation must be nearing exhaustion.
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