The Stripper and the Taxman: Sexy, but is it Art?

A New York strip club is making headlines with a valiant attempt to avoid paying a rather large tax bill.

The club, named Nite Moves, advertises itself as 'the only gentleman's club in Albany with fully nude private dancers' and is being charged back taxes of between US$125,000 and US$400,000 according to differing sources. But it argued in court this week that its dancers' performances are an art form, and as such the club should be tax exempt. New York state law does indeed exempt revenue from 'dramatical [and] musical arts performances' from tax. But does lap- and pole-dancing qualify?

Nite Moves' attorney, adult industry specialist Andrew McCullough, presented a spirited argument in court that it does. 'It's not the Bolshoi [ballet], but it's good,' he said in praise of the club's dancers, going on to point out that pole dancing is under consideration as an Olympic sport. The judge appeared to disagree; the Associated Press reported him as commenting that the dancers are hired untrained and simply 'do what they do'. State law adds that exotic dancing does not qualify as an arts performance because it is not firmly choreographed.

The law, when asked to define art (often for tax purposes), frequently struggles and sometimes finds itself behind the times. Famously, when Brancusi's bronze Bird in Space was imported into the USA in 1928, it was initially deemed not an artwork but a utilitarian object and 40% import duty was charged on the value of the bronze. As a sculpture it could have been freely imported. However, 'sculpture' was defined for import purposes as representing something real, while Bird in Space was abstract: it didn't actually look like a bird. More recently the EU has held that full VAT (rather than the reduced rate for artworks) was chargeable on works by Dan Flavin and Bill Viola when they were imported into the UK. As the pieces' components were light bulbs, video equipment and other such materials, the EU felt they couldn't be deemed 'art'.

Brancusi's Bird in Space

The arguments raised on both sides in the Nite Moves case as to why exotic dancing is or is not 'art' are illustrative of the difficulties faced when making such a decision; some of them seem only tenuously linked to the question in hand. Why should the fact that the club's dancers are hired untrained, or that pole dancing may become an Olympic sport, make their dancing any more or less an art form? Is a painter less an 'artist' because he or she has not been formally trained? Or is the 100 metre sprint an art form because it's an Olympic sport? Again, is lap dancing less an art form because it may also be considered erotic? On this last point it's interesting to recall that ballet, once considered a dubious profession, today enjoys unassailable status as highbrow art.

The court in the Nite Moves case does not have an enviable task in trying to answer the unanswerable question: What is art? So far as exotic dancing goes, the jury is still out. A decision is expected next month.

Read more in the Huffington Post, the Telegraph and the BBC News.