Summarize

Starting from December 2018 every now and then Ms.Kate Zilgalve will share an overview of legal cases – from more serious to even comic ones, that have changed the way how art and its connection with law is seen in court rooms. Kate starts this topic with one of her personal favorites–C.Brancusi vs. United States, that came to court on 1927 and came to a final judgment on 1928*

*Intro by ArtLaw.club

Kate Zilgalve, LL.M, Postgraduate certificate in Art Crime and Cultural heritage protection,

consults Riga International Biennial of Contemporary Art (RIBOCA).

C.Brancusi vs. United States

Constantin Brancusi (1876- 1957) was born in Romania, but from 1904 he lived and worked in the boiling center of art world of that time - Paris. As one can imagine, Paris at that time was used to quiet eccentric and daring activities of artists (C. Brancusi himself had already exhibited works with such description as “an egg on a sugar cube”, in 1913, and later, in 1926, “a drainpipe coupled with a coat of chainmail”), but when the work of C. Brancusi traveled to New York, U.S it raised some questions in minds of custom service officers.

Law in force at that time, allowed artworks, including, sculptures to enter U.S. without import tax. The favorable regulation was in force to encourage U.S. collectors to buy artworks from old Europe, thus supplementing their collections, mostly, with antiquities. Back in 1926 to qualify as a sculpture works had to be "reproductions by carving or casting, imitations of natural objects, chiefly the human form"[1] and most of the antiquities imported in U.S.  perfectly fit the description.

In 1926 C. Brancusi created a sculpture called "Bird In Space" (currently in a collection of Seattle art Museum) and sent it to an exhibition in New York. It is worth mentioning, that this was curated by Marcel Duchamp, who, I believe, already had some experience explaining broader perspective of art not only to exhibition visitors, but also state official’s in Europe and U.S. Of course, organizers of the exhibition wanted to use the favorable regulation in force, thus lowering costs of import of the artwork. However, U.S custom officials did not let “Bird In Space” pass as art (it did not look much of a bird to them and also did not match the above given definition of the sculpture). Instead they marked it as a manufactured object, more precisely, "Kitchen Utensils and Hospital Supplies", thus applying a tax of 40% of the value of the work and offending the artist, or more likely his friends.

Even nowadays the question of import of artworks as other goods or vice versa, depending from the raw material value or value of the artwork in total, is raised by exhibition organizers and galleries in order to smoothen the process and lower the costs. Practically, a similar case to this one might be a box full of parts of art installation “X”, for example, number of cables or some square meters of plastic and metal that would travel through customs and would not look as “X” at all. If now in such cases we don’t question what is art and what is not, back then allies of C. Brancusi saw an opportunity to let court decide this sensitive question.

Indeed, it was not C. Brancusi himself who decided to go to court and seek a justice of this relatively small incident with custom tax. C. Brancusi had very strong allies among them lawyers of Harry Payne Whitney, founder of the Whitney Museum of American Art, and many supporters of European modern art movement, who were based in New York and who saw an opportunity to set a precedent that would stay in court practice for a long time and legitimize the “new school” art that they were advocating.

No doubt that they also saw a professional entertainment in this particular case and possibility to rise media attention. In order to “fight of free art” collectors, artists and writers joined to appeal custom’s officers’ taste.[2]

The transcript of court records, from a perspective of today, reminds me of a discussion between a contemporary art lover and first-time visitor of a gallery. Let me provide a short glimpse into deposition of sculptor Jacob Epstein (1980 -1959) who was called as a witness from the side of the plaintiff.

[..]

“-  MR SPEISER [..]: Mr. Lane suggests that you might enlighten the court as to whether you would think that object (Exhibit One) a bird?

- I would, of course, start off with that artist’s title, and if the artist called it a bird, I would take it seriously, if I have any respect for the artist whatsoever. It would be my first endeavor to see whether it was like a bird. In this particular piece of sculpture there are the elements of a bird, certain elements.

- MR. HIGGINBOTHAM:  What elements?

- If you regard the piece of sculpture in profile, you see there, it is like the breast of a bird, especially on this side.

- All breasts of birds are more or less rounded?

- Yes.

- Any rounded piece of bronze then, in other words, could represent a bird?

-That I cannot say.

- JUSTICE WAITE:  Looks more like the keel of a boat, too? 

- If it were lying down.

- And a little like the crescent of a new moon?

- Yes.

- MR. HIGGINBOTHAM:  If Mr. Brancusi called this a fish, it would be then to you a fish?

- If he called it a fish I would call it a fish.

- If he called it a tiger, it would change your mind to a tiger?

-  No.

- In your thirty years experience you have met many other sculptors and artists?

- Yes, Sir.

- You have seen their works?

- Yes.

- Do any of them do works of this class and character?

- There are other artists that do work similar, not absolutely like Brancusi, but of that character[..]. “[3]

A key argument to this case came from the testimony of the art critic Frank Crowninshield, who was asked to explain to the court, what in the object in question made him think it was a bird and he explained that: “It has the suggestion of flight, it suggests grace, aspiration, vigor, coupled with speed in the spirit of strength, potency, beauty, just as a bird does. But just the name, the title, of this work, why, really, it does not mean much.” [4]

This argument made court to conclude that the definition for art was outdated and did not follow the trend of “the new school” of art. This new school portrayed abstract ideas not natural objects, that is, it was art, but outside of the scope of the definition. There was no question whether or not court was in sympathy this “new school” art, the question was of its legal recognition.

From today’s perspective it is no surprise to see an artwork that bears a little resemblance to its title, but since C. Brancusi’s we can say no matter what the title is or how you call it, the most important thing behind the art is the author’s idea. C. Brancusi’s sculpture "Bird In Space" is nowadays one of the most iconic art pieces of 20th century 15 original versions made in marble and bronze can be found in museums around world from Peggy Guggenheim Collection to MOMA. What we rarely see behind this abstract smooth shape of a bird is the big legal question it raised, legitimizing art of its time.