Brancusi, L'Oiseau dans l'espace

The sculpture that redefined art in the most influential art trials ever conducted, Brancusi v. United States. Bird in Space by Romanian sculptor Brancusi, 1926.

The story on this bird makes for a fascinating read. The trial is one of the most influential art trials ever conducted. This was the first court decision that accepted that non-representational sculpture could be considered art.

• After a weeklong journey from France, crates of sculptures by Constantin Brancusi arrived in New York harbor on the steamship Paris, escorted by the artist Marcel Duchamp. It was October 1926 and the sculptures were to be exhibited in the city at the avant-garde Brummer Gallery. United States Customs officials opened the crates and uncovered 20 mysterious disks, eggs, and flame-like forms of carved wood, polished metal, or smooth marble. One work in particular left them dumbfounded: a thin, 4 1/4-foot-tall piece of shiny yellow bronze with a gently tapering bulge called Bird in Space. It didn’t look like a bird to the officials, so they refused to exempt it from customs duties as a work of art.
• News of the customs decision quickly made headlines. The Romanian-born Brancusi was known in New York: He had made a name for himself at the Armory Show of 1913, where his daring minimalist pieces had caused a small scandal and won him admirers among well-known collectors. Now articles in Art News and several newspapers took turns attacking Brancusi’s “meaningless sculptures” or defending his visionary simplicity.
• Under pressure, the customs office agreed to reconsider its decision. In the meantime, it released Bird in Space and other sculptures, on bond and under the classification “Kitchen Utensils and Hospital Supplies,” so they could be exhibited at the Brummer Gallery and then at the Arts Club in Chicago.
• Both shows were successes, but in February 1927 the federal customs appraiser F.J.H. Kracke confirmed his office’s initial finding that any sculptures Brancusi sold in the United States, like Steichen’s Bird, would be subject to duty. In an interview with the New York Evening Post, Kracke explained his ruling: “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 Brancusi’s work.’ In general, it was their opinion that Brancusi left too much to the imagination.”

The next month, Steichen filed Brancusi v. United States to appeal customs’ decision. Abstract Art was now on trial.

• Brancusi’s lawyers were Maurice Speiser, an art lover who took on the case for free, and Charles Lane, the personal lawyer of Gertrude Vanderbilt Whitney, who later helped set up the Whitney Museum of American Art.
• During the hearing, Judges Young and Waite placed great emphasis on the Bird’s title. The Tariff Act didn’t require that sculptures be realistic, but under a 1916 Customs Court decision called United States v. Olivotti sculptures qualified as art works only if they were “chisel[ed]” or “carve[d]” “imitations of natural objects,” chiefly the human form representing such objects “in their true proportions.” And it was far from clear whether the Bird could be called art, because it looked like nothing anyone had ever seen before.
• At the trial, Brancusi’s witnesses defended his move toward abstraction and argued that the Bird’s birdness was irrelevant to its artistic quality. Watson, the Arts editor, said the piece’s name was a “minor point … not of any consequence”; far more revealing were its form and balance. But to Thomas Jones, a professor at Columbia who testified for the customs office, the Bird was “too abstract and a misuse of the form of sculpture.”

The court’s sensibility favored Brancusi. In its decision of November 1928, drafted by Judge Waite, the court held:

• 'The object now under consideration … is beautiful and symmetrical in outline, and while some difficulty might be encountered in associating it with a bird, it is nevertheless pleasing to look at and highly ornamental, and as we hold under the evidence that it is the original production of a professional sculptor and is in fact a piece of sculpture and a work of art according to the authorities above referred to, we sustain the protest and find that it is entitled to free entry.'