Brancusi v. United States: Modern Art on Trial

Ninety-five years ago, a federal court handed down its verdict in the historic trial pitting the Paris-based artist against the American government. The case was about a sculpture that U.S. Customs had decided was an industrial object – not a work of art – and therefore subject to import duties. This legal battle paved the way for conceptual art in the United States.
Constantin Brancusi in his studio in Paris, ca. 1933-1934. © 2023 Succession Brancusi/ARS, all rights reserved

It all began in the fall of 1926. Following a suggestion from Marcel Duchamp, the Brummer Gallery in New York City hosted an exhibition of Constantin Brancusi. The Romanian, naturalized French sculptor, had trained at the Ecole Nationale Supérieure des Beaux-Arts in Paris and then under Auguste Rodin, and had been making inroads in the United States since his contribution to the Armory Show in 1913. With this new exhibition, he hoped to win over the American public.

After designing the exhibition’s scenography, the master of abstraction shipped his most audacious sculptures to New York. His great friend, Marcel Duchamp, another artist on the Parisian avant-garde scene, also made the trip to supervise the works. But when the pieces arrived on American soil, nothing went according to plan. A customs officer, perplexed by Brancusi’s bronze objects, declared that they were not works of art.

One object in particular was met with incomprehension: a slender, tapered piece of yellow metal, standing 4 feet and 4 inches high, with a mirror finish across its entire surface. Brancusi’s friend protested that it was a work entitled Bird in Space, but U.S. Customs responded that “this object does not resemble a sculpture.” Bird in Space was categorized as a utility object and registered under “Kitchen Utensils and Hospital Supplies.”

This was quite a blow, as artistic creations had been exempt from customs duties since the Tariff Act of 1922 allowing artwork to be freely imported into the United States. The entire shipment was seized and charged the high taxes applicable to manufactured goods (40% of their total value). Financial considerations aside, Brancusi saw this decision as a brutal challenge to his art.

A Legal-Artistic Battle

On February 7, 1927, the indignant artist wrote to his friend, Marcel Duchamp: “I received your letter of January 23 at the same time as the notice from Dowing & Co. I have cabled you to protest energetically, as this is a great injustice.” Acting through Duchamp, Brancusi decided to take his case to court. His aim was to recover the customs duties paid, but above all to reassert his status as an artist. A year later, the trial of Brancusi v. United States began.

Constantin Brancusi, Bird in Space, 1926. © Alamy
The arrival of Bird in Space in the United States, as depicted by French author and illustrator Arnaud Nebbache. © Europe Comics
Brancusi’s studio was reconstructed at the Centre Pompidou in Paris. © Viennaslide/Alamy

Arnaud Nebbache created a graphic novel inspired by this fascinating case, which has recently been translated into English. In Brancusi versus United States, he portrays a tormented artist who, at his lowest point, even started to doubt his own talent. While Brancusi is interrogated at the American embassy in Paris and forced to swear under oath that he personally made these works, Arnaud Nebbache, like Marcel Duchamp in his day, sketches the experts taking the stand.

These specialists included world-famous American fashion photographer Edward Steichen, sculptor Jacob Epstein, and Forbes Watson, editor in chief of The Arts magazine. Exhibit 1, the famous bronze bird, stood almost regally in the center of the courtroom. New York collector Peggy Guggenheim sat in the middle of the public gallery while questions flew thick and fast from the American prosecutors.

Was Bird in Space, bought by Edward Steichen, an original? Was it part of a series, or was it a one-off? And for that matter, was it actually a bird? According to its owner, the bronze sculpture certainly conjured up, if not the flight then at least “the essence of a bird.” However, this answer failed to convince Brancusi’s critics, who claimed that comparing this conceptual piece to a work of art was tantamount to insulting the discipline of formal sculpture.

Old versus New

In her book Brancusi vs. United-States: The Historic Trial, 1928 (1999), art historian Margit Rowell looks back at these exchanges and analyzes the American court’s answers to the question put forward by the case: Is the object in question a work of cultural or a manufactured product? Now studied in art schools and art law classes, the book can be seen as a plea for the artistic avant-garde.

On November 26, 1928, the verdict was finally handed down in New York. The magistrate recognized the existence of a “so-called new school of art” whose exponents “attempt to portray abstract ideas rather than to imitate natural objects.” He also declared that: “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 recognized by the courts must be considered.”

This was a resounding victory for modern art and its supporters. “To the credit of the American judges, they were able to see through the criticism and deliver a magnificently balanced verdict,” says art historian André Paléologue, who helped bring the trial to the attention of the French public. The day after the verdict, photographs of the sculpture were published in the press with the triumphant caption: “It’s a bird!”

Paradoxically, although Brancusi never got over having to prove his artistic credentials to the Americans, the lawsuit bolstered his global reputation. “The price of his works soared,” says André Paléologue. Above all, the clash confirmed the recognition of conceptual art, protected its daring nature, and ensured its free distribution. “Today, the highly reasonable precedent of 1928 is still there to guide us.”

Brancusi versus United States
by Arnaud Nebbache, translated from French by M.B. Valente, Europe Comics, 2023.

Brancusi vs. United States: The Historic Trial, 1928 by Margit Rowell, Vilo International, 1999.

Article published in the December 2023 issue of France-Amérique. Subscribe to the magazine.