What is art? More than almost anything else, art means different things to different people. To some it’s an aesthetic experience that engages the senses and emotions, to others it’s more of a cerebral thing. Art can explore colors and comment on politics, convey a deep sensuality or spirituality or, in some cases, both.
The plight of the digital arts parallels that of artisan crafts. Art has been losing its moorings in tradition, and this brings out some of the underlying assumptions about what art IS. Unfortunately, there seems to be no consensus on that. Much to my chagrin, the law has taken it upon itself to define the “fine arts” in the Visual Artists Rights Act of 1990 (“VARA,” 17 U.S.C. § 106A). Legally, only paintings, drawings, prints, sculptures, and still photographic images are protectable as “fine art.” They must have been produced for exhibition only, editions must be limited to a max of 200, and the works must signed and numbered by the artist. This categorically excludes any work that exists in a non-traditional form – new media art, digital art, as well as artisan crafts – through the limited scope and the difficulty in limiting “copies” of any work in a digital format, harkening to the difficulties the law has with wrapping their mind around fixation requirements in a digital age.
More interesting definitions of art have bubbled up in art and academia. In his paper now making the rounds in New York art schools, Matthew Fuller posits that art relies on its founding a-legality and primary valuelessness. Leo Tolstoy famously argues that good art is not about aesthetic qualities such as truth or beauty, but about communicating a (Christian…) message. If we look to Wikipedia to crowd-source a popular consensus, the fine arts “encompass art forms developed primarily for aesthetics and/or concept rather than practical application.”
And that, it seems, is the crux of the issue. The art world may be in perpetual debate as to whether the concept or the aesthetics are more important, but it seems generally agreed that art is something beyond the useful, that exists for its own sake in some idyllic realm which treasures form and not function. (Perhaps we have Plato and his chair to thank for that).
The utility/creativity divide has been enshrined by the Founding Fathers into our intellectual property laws – patents and copyrights have been split since the Constitution was signed. 
Susan M. Bielstein puts it well in Permissions, a Survival Guide: Blunt Talk About Art as Intellectual Property:
“Most intriguing about VARA is what it defines to be a work of visual art. Paintings, drawings, prints, fine-art photographs, and sculpture in single copies or limited editions make the cut, but motion pictures, technical drawings, books (what about artists’ books?), architecture, applied arts – anything that is actually used – do not. Obviously the definition is extremely narrow and does not begin to address the variety of productions that now dominate the art scene and current discourses of visual culture. What about multimedia installations? Or digital art? Or functional art where concepts of art fuse with those of craft? Would a glass sculpture in the shape of a vessel by the artist Dale Chihuly be protected by VARA? Probably. But what about a bowl by the great Twa potter Maria Martinez? In the Tewa language there is no word for “art.” Martinez meant for her pots to be used. Nevertheless, prices for them are as high, if not higher, than those for a Chihuly, and Martinez is considered to have been just as innovative in her medium as Chihuly is in his.”
- (Art. I, Sec. 8, Clause 8).↵