How Putting Brâncuși's "Bird in Space" on Trial Changed Our Definition of Art

If you ever wonder—as I have often done—exactly how it came about that our culture's definition of art has evolved (devolved?) to its present state, you may be interested in this story I heard a few months ago. As the story goes, th outcome of a trial of a sculpture by Constantin Brâncuși contributed in its way towards American society's acceptance of non-representational art, similar to how the more-well-known outcome of the obscenity trial of James Joyce's Ulysses in 1921 previously influenced the definition of what constitutes literature.

The story was told by British art critic Alastair Sooke in an episode in The Way I See It series from the BBC, in which Sooke interviewed individuals he called, "some of the leading creatives of our age." Each of the "creatives" talked about an individual work that appealed to them from the collection of the New York Museum of Modern Art (MOMA).  This story came up in the episode in which fashion designer Zac Posen gave his reactions to a 1928 Brâncuși sculpture called Bird in Space. As it turns out, the Bird in Space sculpture at the MOMA is actually only one of a series of sculptures by Brâncuși—all of which are titled Bird in Space. Brâncuși made fifteen versions in marble and bronze and a number of plaster casts.

How a Bird in Space Launched a Legal Battle

This is the entertaining way Sooke told the story:

“American photographer Edward Steichen ‘bought a version of "Bird in Space" from Brâncuși’s studio in Paris, and he wanted to bring it back to America. And when he turns up at the border and shows it to the custom’s official, the official looks at him and says, “What is it?” Steichen said, “Well, it’s a work of art. It’s called ‘Bird in Space.’ It’s a sculpture.” And the customs official would not entertain the idea that a piece of metal could possibly be a work of art. And so he said, “I’m sorry mate, it’s not. It counts as kitchen ware or other ordinary household utensils.” And consequently he slaps a big tax onto the work which would have been exempt had it been categorized by the customs official as a sculpture. And Brâncuși got involved, and he decided to fight it as a law case and he actually took it as a law case took to trial. Trial starts October 1927 and apparently lasted for four years. There were many expert witnesses, critics from the art world, critics who were invited to come in and explain in a court of law how this could possibly be a masterpiece of modern art. It has a happy ending this story, because the judge was quite enlightened. And in the end, the judge ruled that Yes, it may not look like a bird but this is nevertheless a representation of flight. It is a work of art. Let's hear it for Judge J. Wait whose landmark ruling on that earlier variant of Bird in Space was something of a turning point in the acceptance of modern art."

Incidentally, Sooke's story is one of many examples I've come across of stories that have erroneous details but are often taken up and repeated in many places, even though the facts are not quite right. The errors in Sooke's account (which I describe below) are repeated elsewhere at the MOMA website and in other sites I ran across in a cursory Google search.

Facts from Legal History

Actually, as reported in "Brancusi’s Bird in Space: Is it a bird or is it art?," the Bird in Space version that occasioned the law suit was one of many works by Brâncuși that were shipped with it in crates from Paris on the steamship Paris, in 1926. The shipment was accompanied not only by Edward Steichen but by perhaps the most notoriously boundary-challenging artist of his day, Marchel Duchamp, he of the signed-urinal fame.

Brâncuși’s “Bird in Space” 1926

Protective custom laws had been set up to tax craft works at high rates—to protect U.S. artisans—and to allow fine art to enter tax free, which would encourage U.S. museums to purchase European art for their collections.

It seems odd now almost a hundred years later and after many successive waves of art theories have expanded the definition of art to a hitherto unimaginable extent, but for the purposes of defining what could be brought into the U.S. as art, until 1926 art was required to be figurative.

"The witnesses for the government argued that the court should follow the precedential standard set by Olivotti: that art must represent a natural object in its true proportions. (Brancusi, 45 Treas. Dec. at *4-5)."

So, the hangup of Bird in Space at customs was due to its abstract nature, which made it doubtful as a work of art to the customs officer's eye.

One mistake in Sooke's account is that it wasn't Brâncuși who brought the subsequent lawsuit. As the article says, "Edward Steichen . . . who had purchased Bird in Space, filed an appeal funded by Gertrude Vanderbilt Whitney, a collector and patron of the arts."  Whitney was planning to open her own museum (Whitney Museum of American Art, which opened in 1931), so the article hints she "may have had an ulterior motive when she funded the Brancusi appeal."

Another mistake in Sooke's retelling is the sculpture wasn't actually classified by the customs officer under household utensils.  "The Customs Official assessed the work as a “manufacture of metal,” not a piece of art, and imposed a tariff of 40% of the sales price. (Brancusi, 45 Treas. Dec. at *1)."

The reclassification happened later as described in the article, "An Odd Bird" at  LegalAffairs; The Magazine of the Intersection of Law and Life.

“Under pressure from the press and artists, U.S. customs agreed to rethink their classification of the items, releasing the sculptures on bond (under "Kitchen Utensils and Hospital Supplies") until a decision could be reached. However, customs appraiser F. J. H. Kracke eventually confirmed the initial classification of items and said that they were subject to duty."

"An Odd Bird" has many additional satisfying details of what transpired, including common opinions about the work using words that some of us can still relate to: “several men, high in the art world were asked to express their opinions for the Government . . . . One of them told us, 'If that's art, hereafter I'm a bricklayer.' Another said, 'Dots and dashes are as artistic as Brâncuși's work.'" 

"The next month, Steichen filed an appeal to the U.S. Customs' decision." 

Eventually, after listening to expert witnesses, as Sooke said, Judge Wait did allow that Bird in Space was a work of art after all, even though it wasn't representational.

"[T]he court recognized . . . that a new school of art that centered around abstraction was developing at that time.  The court found significant that the work was an original production by a professional sculptor and declared that while Bird in Space did not immediately resemble a bird, it was “beautiful and symmetrical in outline” and “nevertheless pleasing to look at and highly ornamental.” (AId. at *8).  Thus, the court held that Bird in Space was entitled to free entry under Paragraph 1704 of the Tariff Act as a work of art.  (Id.).

Edward Steichen’s photo of Brâncuși’s first cast of “Bird in Space” from 1925

Afterword

The beauty of Bird in Space continues to appeal, even to someone like me who subscribes to another definition of art. Sadly, even the minimal criteria of beauty is no longer considered a criterion for art. Even back in 1926 theories of art were already floating around that also rejected beauty. For example, as mentioned earlier, Marcel Duchamp had signed a urinal and submitted it to an art exhibition in 1917.

The pose of rejecting the traditional artistic standards was still prevalent when I was an art student in the 1970s in San Francisco and in Minneapolis. At the University of Minnesota, for example, one day I listened to a presentation by a visiting New York City “installation artist” who poured concrete on gallery floors (apparently he relished the gallery owners’ dismay at the destruction of their hardwood floors) and told us earnestly that he had to work very hard to make sure he obliterated the beautiful patterns that naturally form when concrete is poured, “to avoid the trap of beauty.”

The Way I See It series is recommended listening for a course I’m taking during SIP about contemporary art, which is offered for free by the Museum of Modern Art. Although I turned my back on modern art after my immersion in its theories and practices in the process of pursuing my degree in Studio Arts: Drawing and Painting, which I earned in 1979, I took notes from the BBC series to get more current in art theory—motivated by a discussion I’ve been having with another writer who thinks we should not reject what I and many others think of as an often offensive, egotistically motivated contemporary art scene, because, he says, we should first engage the artists and understand the motives of those who create works aimed at being transgressive. I certainly don’t share his assumptions, but I’m sincerely trying to understand why he thinks that way and why others who I also respect think what he is saying has merit.