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When art itself went on trial

Tate Modern's forthcoming Brancusi exhibition recalls a famous US court case which asked: when is a sculpture not a sculpture? Martin
Gayford reports

Martin Gayford

12:01AM GMT 24 Jan 2004

When visitors to Tate Modern start to file into the major Brancusi exhibition that opens next week, they will have no doubt in their minds that they are looking

at art. The radical but exquisite simplifications of Brancusi's work long ago made him one of the most revered figures of 20th-century modernism.

But a sculpture very similar to one of those on show in the Tate exhibition was at the heart of an extraordinary legal case that began in New York on October

21, 1927. The two contestants were the US government and the greatest living avant-garde sculptor, Constantin Brancusi. Among the expert witnesses were

Jacob Epstein and the great photographer Edward Steichen, while also drawn into the dispute were Marcel Duchamp, Ezra Pound, and Henri-Pierre Roché,

author of Jules et Jim. And the point at issue was no less than that eternal conundrum, "What is art?"

The definition of art is not something that anyone would lightly undertake. Nor would it normally be left to a US customs official to decide. But that is exactly

what happened in October 1926 when Marcel Duchamp arrived on the New York dockside accompanying 20 modernist masterpieces from Brancusi's studio

that were destined for selling exhibitions in New York and Chicago. Duchamp at that time had given up art in favour of chess, and was trying to eke out a

living by art-dealing with his friend Henri-Pierre Roché, mainly in Brancusi.

The point was that ordinary merchandise was subject to duty at 40 per cent, while art was not. And the customs official on duty at the time happened to be

an amateur sculptor – just the sort of person to have bumptiously confident views about matters aesthetic. He took one look at the Brancusis, concluded that

they weren't art, and levied $4,000 duty.

Exactly the same thing had happened to Edward Steichen that same autumn when he attempted to enter the US with his beloved, newly-purchased Brancusi

Bird in Space. This graceful object evokes effortless gliding upwards into space, but is admittedly short of beak, wings and other naturalistic details. Steichen

was told to pay $240.

The position was richly paradoxical. Brancusi, who had just turned 50, was more highly regarded in the United States than in Europe. He had many

American collectors, among them John Quinn, a lawyer, collector of modern art and good friend of his. Some of the Brancusi sculptures in the exhibition had

actually belonged to Quinn, who died in 1924. He had also framed the 1913 legislation abolishing customs duty for works of art, with the laudable aim of

making the lives of artists and art-lovers easier. But nowhere does the law of unintended consequences operate so remorselessly as in courtrooms.

Since the law's introduction, a manufacturer of ornamental benches – in the records simply as "Olivotti" – had claimed that his wares were art and should not

be subject to duty under the new legislation. And the subsequent judgment had found that, to count as art, an object should be a representation of natural,

preferably human, form. Now, did that apply to the work of Brancusi – which bore titles such as Fish, Bird or Sleeping Muse, but often had the pared-down

shape of an egg, a pebble, or, as the opposing counsel was to put it, "a polished copper rail"?

FJH Kracke, federal customs appraiser, was in no doubt. "After long enquiry and a written report from the inspector in charge of the case," he told the New

York Evening Post, "it has been decided that Brancusi's work is not art. Several men, high in the art world, were asked to express their opinions for the

government. They are unanimous in their decision. One of them told us, 'If that's art, I'm a bricklayer.'"

Naturally Brancusi and his supporters did not agree. Duchamp decided to appeal against the customs decisions against Brancusi's art, on behalf of Brancusi

himself – "protest energetically because this is a great injustice," he wrote to Duchamp in February 1927.
Brancusi in turn received pugnacious support from the poet Ezra Pound: "I was sick to hear a bastard in New York made you pay duty on your sculpture. I

could spit in the eye of the skinflint in charge of these matters." The writer ee cummings wrote a parody of Brancusi for Vanity Fair, describing one Ivan Narb

– from Latvia, not Romania, but like Brancusi of agricultural stock. Cummings imagined Narb hoeing his father's potatoes on the outskirts of the town of

Blurb: "Dreaming of the day when each animate or inanimate thing – a rose, a button, a cloud, an eyebrow, a mountain, a particular time of day, nay even a

potato – would flower forth in new and cosmic forms." Brancusi was a celebrity. And the scene was set for a mighty and farcical cause célèbre.

Duchamp suggested that Steichen's sculpture should be entered in evidence, as a representative sample of Brancusi's work. And so it was that on October

21, 1927, the slender, lyrical Bird in Space was tagged Exhibit 1. A phalanx of Brancusi's friends and allies were mustered – among them Steichen himself,

the English sculptor Jacob Epstein, and the American art critic Henry McBride.

All of these in previous days had attended Brancusi's famous dinner parties in his Parisian studio on impasse Ronsin, cooked by the artist himself on his

home-made forge (grilled steak was a speciality). But the scenes in the American court suggested more a film by the Marx brothers, and it was the art-lovers

themselves who were grilled.

Steichen was asked whether he would call the Brancusi sculpture a bird if he saw it on the street. The judge then chipped in and enquired, "If you saw it in

the forest would you not take a shot at it?" "No, your honour," Steichen sensibly replied. Epstein was asked whether, if Brancusi had called the work a fish, "it

would then be a fish to you?"

"If he called it a fish, I would call it a fish," the great man loyally answered.

"If he called it a tiger would you change your mind to a tiger?" Epstein drew the line there: "No." But the counsel for the US broke in: "If he called it Tiger in

Flight? If you took a brass rail perfectly curved and symmetrically formed, highly polished, it would appeal to you also as a work of art?"

That was a poser. "No," Epstein started dubiously, then added, "If some great artist made the rail…" The barrister pounced. "Suppose you did not know who

made it?"

"That would make no difference at all," the sculptor stoutly carried on.

"It would make no difference at all if, so far as its artistic quality is concerned… it had been made by a mechanic or made by a sculptor?"

Epstein presumably gulped and took a plunge. "If it is beautiful it could not have been made by a mechanic."

It was lucky it was him and not Duchamp in the witness box. Duchamp, of course, is famous as the artist who first exhibited ordinary objects as works of art,

including a bottle rack and a bicycle wheel. And both of those had been made by mechanics.

What is and is not a work of art is an immensely knotty question to elucidate at any time, most of all to explain in legal terms. But some consolation was to be

had from the fact that the two academic sculptors, now completely unknown, did no better in explaining why the Bird was not a work of art (one complained

that Brancusi had used his imagination too much).

In the event, the judgment was surprisingly sensible. "There has been developing a so-called new school of art, whose exponents attempt to portray abstract

ideas rather than to imitate natural objects. Whether or not we are in sympathy with these newer ideas, we think that the facts of their existence and their

influence on the art world must be considered." In other words, there is this stuff called modern art, the judges concluded, and, whether you happen to like it

or not, people admire it and collect it, so it is ridiculous to classify it as hardware.

Brancusi had won. "It's a Bird!" shouted the headlines, in anticipation of Superman. Brancusi happily told a reporter that he would like to build a giant version

of his Endless Column in Central Park, with a Bird in Space zooming up at the top.

"All my life," he said, "I have sought the meaning of flight. Flying, what joy!" And his sculpture soared into the future, triumphantly free of all definitions.