What is Art? - Southwestern Law School

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124 J. INT’L MEDIA &ENTERTAINMENT LAW VOL. 4,NO. 21928 USA: Brâncuşi v. United States 61In the 1920s Brâncuşi began an exploration of the shapes of birds inflight. In 1923 he carved a work in marble that “concentrated not onthe physical attributes of the bird but on its movement. In Bird inSpace wings and feathers are eliminated, the swell of the body is elongated,and the head and beak are reduced to a slanted oval plane.Balanced on a slender conical footing, the figure’s upward thrust is unfettered.Brancusi’s inspired abstraction realizes his stated intent tocapture ‘the essence of flight.’ This particular conception of Bird inSpace is the first in a series of seven sculptures carved from marbleand nine cast in bronze, all of which were painstakingly smoothedand polished.” 62In 1926 a consignment of twenty Brâncuşi sculptures arrived atNew York by steamship from France, including a bronze version ofBird In Space. 63 US Customs demanded payment of import duty of40% of the market value of its bronze material as ‘merely a manufactureof metal’: around $230. Works of art could be imported duty freeunder the 1922 Tarrif Act. Brâncuşi filed suit claiming that his workwas in law an ‘original sculpture’ and therefore exempt from importduty. 64 At the heart of the case lay the question: what is Modern Art?In 1928 a US Customs Court in New York ruled that Brâncuşi’ssculpture was a work of art, not an ‘article of utility’, as US Customshad claimed. This seminal trial, and especially its enlightened ruling,has been cited by art lawyers worldwide for eight decades as an iconiclegal precedent. Both parties called expert witnesses to attest whetherthe bronze artefact was indeed art. The US Customs appraiser had assertedthat “Several men, high in the art world were asked to expresstheir opinions for the Government and one of them told us, ‘If that’sart, hereafter I’m a bricklayer.’ Another said, ‘Dots and dashes areas artistic as Brâncuşi’s work.’ In general, it was their opinion thatBrâncuşi left too much to the imagination.” Brâncuşi gave evidence61. Brancusi v. United States, 54 Treas. Dec. Cust. 428 (Cust. Ct. 1928).62. Catalogue entry of the Metropolitan Museum of Art, New York, which acquiredthe original marble sculpture in 1995 as a bequest from Florene M. Schoenborn,who had bought the work in 1942: 57 inches high, 6 1/2 inches diameter. A seriesof seven was made in marble. Nine were cast in bronze (two of which are in thecollection of Museum of Modern Art, New York, one at the Philadelphia Museum ofArt). One sold at auction in the U.S. for $27.5 million in 2005, the then highest hammerprice for any sculpture.63. U.S. photographer Edward Steichen had bought the work in France and Brâncuşiarranged for it to be shipped to the United States, accompanied by the artist’sfriend and colleague Marcel Duchamp.64. Marcel Duchamp suggested the lawsuit; Gertrude Vanderbilt Whitney financed it.
WHAT IS ART? 125of his execution of the work: “I conceived it to be created in bronzeand I made a plaster model of it. This I gave to the founder, togetherwith the formula for the bronze alloy and other necessary indications.When the roughcast was delivered to me, I had to stop up the air holesand the core hole, to correct the various defects, and to polish thebronze with files and very fine emery. All this I did myself, byhand; this artistic finishing takes a very long time and is equivalentto beginning the whole work over again. I did not allow anybodyelse to do any of this finishing work, as the subject of the bronzewas my own special creation and nobody but myself could have carriedit out to my satisfaction.”The court’s judgment relied strongly on the intentions of the artist,and the opinions of eminent art experts. It held: “There has been developinga so-called new school of art, whose exponents attempt toportray abstract ideas rather than to imitate natural objects. Whetheror not we are in sympathy with these newer ideas and the schoolswhich represent them, we think the fact of their existence and their influenceupon the art world as recognized by the courts must be considered.”The court concluded: “The object now under consideration . . .is beautiful and symmetrical in outline, and while some difficultymight be encountered in associating it with a bird, it is neverthelesspleasing to look at and highly ornamental, and as we hold under theevidence that it is the original production of a professional sculptorand is in fact a piece of sculpture and a work of art according to theauthorities above referred to, we sustain the protest and find that itis entitled to free entry.”IV. Trials of Contemporary ArtBearing in mind this Brâncuşi case, let us now consider significantjudgments during the last 25 years of Contemporary Art.1987 England: Regina v. Boggs 65In 1984 US artist JSG Boggs 66 was in a diner in Chicago “having adoughnut and coffee and doodling on this napkin . . . sketching a65. Regina v. Boggs, Unreported (Cent. Crim. Ct. London 1987); see also GEOF-FREY ROBERTSON, THE JUSTICE GAME (1999); LAWRENCE WESCHLER, BOGGS: ACOMEDYOF VALUES (1999); Henry Lydiate, The Courtroom as Gallery: The Jury as Spectators,in THE TRIALS OF ART (Daniel McClean ed. 2007).66. James Stephen George Boggs was born in New Jersey, USA, in 1955. Hedropped out of an accountancy course to attend art schools in Florida and NewYork, and settled in London in 1980 to pursue his art practice which, at that time, focusedon graphic representation and interpretation of numerals.
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