PicoBlog

It’s illustrative of our present-day popular attitudes toward Christian values that while the reverent and often mystical Bible illustrations by James Tissot languish in the archives of the Brooklyn Museum, an ugly painting that many consider blasphemous, titled “The Holy Virgin Mary,” was featured in the Brooklyn Museum’s 1999 exhibition of a traveling show of the work of Young British Artists, titled “Sensation.” The painting depicts an African woman partly draped in blue with a hint of a blue veil — with one distorted eye larger than the other and suggestively shaped red lips, one exposed breast made of elephant dung, and collaged “angels" made of cutouts of buttocks and other body parts from porn magazines floating around the cartoonish figure. The painting made its maker, Chris Ofili, famous and rich. It sold in 2015 for $4.5 million at Christie’s London, and it was donated in 2018 to the permanent collection of the New York Museum of Modern Art.  I’ve mentioned this blasphemous offense against good taste before here, but it is quite relevant to the topic of this post.

If you ever wonder—as I have often done—how it came about that our culture's definition of art evolved (devolved?) to its present state, you may be interested in this story I came across when I was listening one day to "The Way I See It" series on the BBC. As the story shows, the outcome of a 1926 trial about the artworthiness of the sculpture by Constantin Brâncuși shown above contributed towards our society's acceptance of non-representational art, similar to how the more widely-known outcome of the obscenity trial of James Joyce's Ulysses in 1921 influenced society’s acceptance of previously unacceptable literary topics.

English art critic Alastair Sooke, who told the story of the trial that got me interested, is the moderator in the "The Way I See It" series on which he interviews "some of the leading creatives of our age” about individual works from the collection of the New York Museum of Modern Art. In the episode titled, "Zac Posen on Constantin Brancusi's Bird in Space," in which Sooke told his version of the trial story, fashion designer Zac Posen gave his reactions to the 1928 Brâncuși sculpture titled Bird in Space.

As it turns out, the Bird in Space sculpture discussed in this episode is actually only one of a series of sculptures by Brâncuși—all of which were titled Bird in Space. Here’s the version at MOMA.

This is the entertaining way Sooke tells the story about how a previous version of Bird in Space from 1926 launched the legal battle that was a turning point in the acceptance of modern art:

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 customs 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 kitchenware 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 Brancusi got involved, and he decided to fight 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."

The factual errors in Sooke’s story should also be noted, because his is one of many examples I've come across of stories with erroneous details, which I later find repeated in many places. For example, the errors in Sooke's account (which I describe below) are repeated on the MOMA website and on other sites I ran across in a cursory Google search.

I keep finding evidence that the people who are paid to know their stuff are more fallible than I ever had suspected. For one example, you might want to check out this article I wrote about the inaccuracies I found at the Getty Museum in LA here, “Getty Museum's Christian Manuscripts Exhibit Sees Antisemitism Where There Is None.”

Back to the facts about Bird in Space.

As reported in Brancusi’s Bird in Space: Is it a bird or is it art? at the expired TheLegalPalette.com website, the Bird in Space version that occasioned the lawsuit was one of a group of works by Brancusi that was shipped in crates from Paris on the steamship “Paris,” in 1926. The shipment was accompanied by perhaps the most notoriously boundary-challenging artist of his day, Marchel Duchamp, who had signed a urinal “R. Mutt” and submitted it to an art exhibition in 1917, and by photographer Edward Steichen.

It seems odd now almost a hundred years later and after myriad fashionable art theories have expanded the definition of art to a hitherto unimaginable extent, but the law that defined what could be brought into the U.S., until 1926, required art to be figurative. Under the 1922 Tariff Act, a sculpture had to be an original work of art, with no practical purpose, made by a professional sculptor to count as duty-free. 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—to allow U.S. museums to purchase European art for their collections.

"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 the version 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 lawsuit. As the above-mentioned 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."

"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 Legal Affairs https://www.legalaffairs.org, at another dead link).   

"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."

The article"An Odd Bird" also reports common opinions about the work 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, in November 1928 Judges Young and Waite ruled 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.).

Its beauty continues to make Bird in Space in its many variations appealing, even to someone like me who holds to another definition of art that is too nuanced to go into here.

This post is expanded from an earlier essay titled “How Putting Brâncuși's Bird in Space on Trial Changed Our Definition of Art,” which was posted at Dappled Things Deep Down Things blog and is reused with permission.

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