The Case of Constantin Brancusi vs the
From: Art Newspaper
#63, Oct. 1996
How the case came to court
…When I brought Brancusi’s sculpture
“Bird in Space” back home with me to the
Edward Steichen
From 1913
onwards, American legislation had exempted any object with the status of a work
of art from customs duty. The law
specified that sculptures should be “carved or shaped in the likeness of
natural models” in all proportions: length, breadth and width.” A more expansive definition of 1922 stated
that “sculptures or statues” had to be “originals,” must not have been the
object of “more than two replicas or reproductions:” should have been the
unique product of “professional sculptors:” “carved or sculpted, and certainly
worked by hand…and where cast in bronze, or any other metal or alloy, they must
have been conceived exclusively as the professional output o f the said
sculptures: and that the words “painting,” “sculpture” and “statue”…should not
be “interpreted to include utilitarian objects.”
The problem
was thus to agree on what the object was meant to resemble, and moreover to
prove that it was an “original” work, conceived by a professional sculptor, and
crafted entirely by his own hands. If
today these questions seem farcical, particularly with respect to this person
and these works, the outcome was less obvious in 1927.
From his
first
Margit
Rowell
JACOB
EPSTEIN, CALLED AS A WITNESS BY THE PLAINTIFF HAVING TAKEN THE OATH, MADE THE
FOLLOWING DISPOSITION
QUESTIONING
BY
Where do you reside Mr. Epstein?
In
What is your profession?
I am a
sculptor
How long have you exercised this
profession?
I have been
a sculptor for thirty years in
Mr. Epstein, will you tell the Court
just where you are represented as far as your work is concerned?
I have a
piece of sculpture, I am happy to say, in the Metropolitan Museum of Art in
this city. In
Are you represented in
Yes, I have
a work in
Mr. Epstein, are you acquainted with
one Constantin Brancusi?
Yes, I have
known Constantin Brancusi’s works for the last fifteen years.
I asked you about the man himself
I knew him
fifteen years ago, I met him form time to time in
Are you acquainted with his work?
Very well
acquainted.
Is Constantin Brancusi a sculptor?
In my
opinion, yes, decidedly so.
Is he so considered in the world of
art?
He is
considered so in the world of art.
MR HIGGINBOTHAM I object to the world of art.
JUSTICE YOUNG Limit it to his own knowledge.
JUSTICE WAITE What is his reputation among artists,
men who are judged artists, how is he considered as an artist?
WITNESS He is considered as a very great artist I should say.
BY
Mr. Epstein, will you look at the
exhibit one in this case and tell the Court whether in your opinion that is a
work of art.
In my
opinion it is a work of art
CROSS
EXAMINATION BY MR. HIGGINBOTHAM
You say you have been working as a
sculptor for thirty years? In what schools did you study?
I started
at the beginning as a student, at the Art Students League in this city and from
there I went to the National School of Fine Arts and the
Did you receive a diploma or certificate from these schools?
I don’t
believe diplomas are given in the schools.
Whether you
believe it or not, did you receive any?
I know of
no such thing as a diploma.
BY JUSTICE
WAITE
Did you receive anything in the way
of a certificate in writing as an acknowledgement of the work that you have
done in those institutions?
I won my
way into the Gallery of Beaux Arts by competition with the entire class, where
I had to model a figure so as to get in.
I take that as meaning what you wish.
You are not admitted unless you show yourself competent in some work.
BY MR
HIGGINBOTHAM
Your business now is what?
My business
here, to exhibit a collection of my own works.
Of your own works?
Of my own
works, yes.
In this city?
Yes sir, in
this city.
What line of sculpture is it?
I do
everything.
When you say everything, do you do
human figures?
Yes sir.
Do you do any painting?
Yes, I have
done painting.
Do you make painting your
profession?
No,
sculpture is my profession.
Do you have anything to do with
making sculpture similar to the exhibit one?
Well, all
sculptures are different.
I asked you if you made anything
like the exhibit one?
I may not
have the desire to make it.
I did not
ask you that.
JUSTICE
WAITE Answer the question.
Did you make anything like that exhibit?
WITNESS No.
In all your thirty years?
No, I have
not made anything like that.
Do you consider from the training
you have had and based on your experience you had in these different schools
and galleries—do you consider that a work of art?
I certainly
do.
When you say you consider that a
work of art will you kindly tell me why?
Well, it
pleases my sense of beauty, gives me a feeling of pleasure, made by a sculptor,
it has to me a great many elements but consists in itself as a beautiful
object. To me it is a work of art.
So if we had a brass rail, highly
polished, curved in a more or less symmetrical and harmonious circle, it would
be a work of art?
It might
become a work of art.
Whether it is made by a sculptor or
made by a mechanic?
A mechanic
cannot make beautiful work.
Do you mean to tell us that exhibit
one if formed up that a mechanic, that is, a first class mechanic, with a file
and polishing tools could not polish that article up?
He can
polish it up but he cannot conceive of the object. That is the whole point. He cannot conceive those particular lines
which give it its individual beauty.
That is the difference between a mechanic and an artist, he cannot
conceive as an artist.
JUSTICE
WAITE If he can conceive, then
he would cease to be a mechanic and become an artist?
WITNESS Would
become an artist, that is right.
BY MR.
HIGGINBOTHAM
You say you have known Mr Brancusi
for a good many years?
For about
fifteen years.
You say he is known as a great artist?
He is known
as a great artist.
Is he known as a great artist or a
great sculptor?
I use both
titles, they are synonymous to me. A
great artist may be a great sculptor and a great sculptor may be a great
artist.
You have seen many pieces of his
work?
I have seen
probably twenty of thirty pieces.
Were they all similar to the exhibit
one here?
No they are
not similar, they are different.
In what way are they different?
Well, they
are individual creation, each work must be different.
What do they represent,
the ones you saw?
Some
represented birds, some human forms, nude forms and anatomical studies even.
So he has made sculptures of human
forms?
Yes,
decidedly.
When you say some represented a
bird, does that (exhibit one) represent a bird to you?
To me it is
a matter of indifference what it represents.
In so far as that piece of sculpture
is concerned, in appealing to the aesthetic taste, it does not make any
difference what it represents?
Not at all,
there are limits.
We will say a certain piece of rock,
marble, is taken by a sculptor and simply chipped off at intervals,
as long as that chipping off at intervals was done by a sculptor you would
consider it a work of art?
The moment
a piece of rock, marble is begun in the hands of the man, if he is an artist,
it can become from that moment a work of art.
BY MR SPEISER
Mr. Epstein, I ask you if you are
familiar with the works of Mr Brancusi
Yes
I hand you a publication “The Arts,”
dated
I have seen
one of these, this one on page 18.
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 whatever. 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.
BY 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.
BY 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.
BY 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.
So he stands practically alone and
isolated in this particular class of art?
No, he is
related to a very ancient form of sculpture; I should say even to the Egyptian.
He does not stand absolutely alone. He
is related to the fine ancient sculpture like the early Egyptian three thousand
years old. I f you would like me to
bring into court a piece of sculpture, ancient sculpture, which I happen to
have I can illustrate. (Witness leaves
the stand to get the sample.)
What is that piece you have there?
That is a
hawk.
Will you show it to the court so as
to illustrate your answer?
This is an
ancient Egyptian hawk, three thousand years ago.
JUSTICE
WAITE
You can see some similarity in form, with what you understand to be a hawk?
WITNESS
An
ornithologist might not find it, I see the resemblance to a bird, the feathers
are not shown, the feet are not shown.
JUSTICE
WAITE
The wings and the feet are not
shown, still you get the impression it is a hawk?
Yes
|
Justice Waite’s judgment “It’s art” …In the meanwhile 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 and the schools which represent them, we think the facts of
their existence and their influence upon the art world as recognizes by the
courts must be considered. The object
now under consideration is shown to be purely ornamental purposes, its use
being the same as that of any piece of sculpture of the old masters. It 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 under paragraph 1704, supra. Let
judgment be entered accordingly. |
The complete lawsuit is published by Adam Biro,
Brancusi contre États-Unis: un
process historique, 1928, (