In 1926, when modern art was not yet considered art, one man put it on trial and won againt the US Customs !

The background

The “Brouhaha”, as Constantin Brancusi used to call it, began in the fall of 1926, when customs officials in New York declared a group of art objects arriving from Paris not being actual works of art but raw materials and utensils, subjected to custom duties.

Scandalized by this incident, famous artists hailed the works as quintessential examples of a new kind of art and took the case to court.

Deriding the customs worker as a pedant and “son of a swine,” aesthetes and writers such as Marcel Duchamp, Edward Steichen, and Ezra Pound lamented the retrograde American cultural landscape and plotted a course to transform New York City into an international Modern Art Mecca.

Conceived by Marcel Duchamp, funded by Gertrude Vanderbilt Whitney, and facilitated by Edward Steichen, Brancusi v. United States brought the budding New York art world – for a brief few days – under the same roof to answer the question: “What is art?”

In November 1928 Judges Young and Waite found in favor of the artist. The trial would later be considered as the trial of Modern Art.

Constantin Brancusi, Duchamp, Brancusi, Tzara et Man Ray, 1921

The facts

After a long journey from France, the crates with sculptures by Constantin Brancusi arrived in New York harbor escorted by Marcel Duchamp.

The sculptures were to be exhibited in the city at the avant-garde Brummer Gallery in octobre 1926.

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.

Brancusi works

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. They imposed the standard tariff for manufactured objects of metal: 40 percent of the sale price, or $240 (about $2,400 in today’s dollars).

Constantin Brancusi, Bird in Space, 1924

Constantin Brancusi, Bird in Space, 1924

News of the customs decision quickly made headlines. The Romanian-born Brancusi was well 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.

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 huge 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 the Bird, would be subject to duty.

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

An impressive roster of luminaries from the New York art scene was gathered before judges George Young and Byron Waite when the trial opened in October 1927.

Brancusi, who was born a peasant and disliked publicity, wasn’t there, having retreated to his studio in Paris. The case had become such a “brouhaha,” in his view, that he preferred to entrust it to Steichen and his lawyers, 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.

When he was 26, according to legend, Brancusi set out on foot on the 1,200-mile journey to Paris; however he got there, in 1904 he enrolled at the prestigious école des Beaux Arts. The decade that followed was marked for him by poverty, hard work, and eventually a place in the avant-garde community among Duchamp, Ezra Pound, Amedeo Modigliani, and Erik Satie, who would become his friends and transforming influences.

At an exhibit in Paris in 1906, Auguste Rodin, then the towering figure in sculpture, spotted one of Brancusi’s pieces and invited him to work in his studio. Brancusi declined because he believed “nothing grows well in the shadow of a big tree.”

Instead, he developed quickly working on his own. By 1908, he had decided to stop representing the human form. “The decline of sculpture started with Michelangelo,” he once told reporters. “How could a person sleep in a room next to his Moses? Michelangelo’s sculpture is nothing but muscle, beefsteak, beefsteak run amok.”

That year he finished The Kiss, a boxy stone sculpture of an embrace, still recognizably human but stylized and enigmatic. It was a commentary on Rodin’s sensual 1881-82 sculpture by the same name, which represents a couple wrapped in a kiss. It was also one of Brancusi’s first moves away from representational sculpture toward the abstract, purified lines that became his signature.

“In art, one does not aim for simplicity,” Brancusi liked to say. “One achieves it unintentionally as one gets closer to the real meaning of things.”

Constantin Brancusi

He spent the following 50 years looking for that meaning, 40 of them in two studios on impasse Ronsin, in the 15th arrondissement in Paris, where he lived alone with his sculptures and his white Spitz dog. A short, sinewy man with a grey-white beard, Brancusi at work in his studio was said to look like a peasant cultivating fields, growing sculptures out of wood, metal, and stone.

Constantin Brancusi

The trial

During the trial, there were several issues regarded as mandatory in order to consider Brancusi works as works of art.

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.”

At the trial, Brancusi’s witnesses defended his move toward abstraction and argued that the Bird’s birdness was irrelevant to its artistic quality.

The trial’s other vexing question was whether the Bird was an original piece. Judge Waite pressed the issue, apparently believing that Brancusi’s various birds, including the five displayed at the Brummer Gallery, were identical casts or copies.

Brancusi’s birds weren’t duplicates but variations on a single theme. He had started working on the bird series in 1910 with a bronze sculpture of Maiastra, a magical bird from a Romanian folk tale. At first Brancusi gave his birds beaks, feet, and bulging breasts, but over the next decade, he refined the form into the sleek Bird in Space, which he continued to develop until the 1940s.

The trial was conducted with the Bird in Space placed in the middle of the court room. Despite all arguments and hearings, the judges seemed progressively seduced by the Bird.

Endly, the decision drafted by Waite concluded :

“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”

This was the first court decision that accepted that non-representational sculpture could be considered art.


Constantin Brancusi is often regarded as the most important sculptor of the twentieth century. His visionary sculptures often exemplify ideal and archetypal representations of their subject matter. His sculptures are deceptively simple, with reduced forms, revealing hidden truths.

Constantin Brancusi, Self-Portrait in the atelier, ca 1930

This is a very rare movie, shot by Brancusi himself

Also, a movie about his life and work

source : Legal Affairs

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