The Case of Constantin Brancusi vs. the United States of America: an extract


How the case came to court

When I brought Brancusi’s sculpture “Bird in space” back

home with me to the US, New York Customs withheld the work

and refused me the regular tax exemption allocated to works

of art. The sculpture was registered as a banal object to be

imported and put into the same category as domestic utensils

or surgical instruments. I thus had to pay a tax of about $600

[in fact $240]. I was frightfully offended and decided to

register a complaint. A few days later l was with some friends,

 recounting my mishap, where completely by chance I met Mrs.

Harry Payne Whitney, founder of the Whitney Museum of

American Art. She quickly understood that this could set a

precedent and she asked me to let her lawyers take charge of

the affair. 1 was very touched by her proposal and accepted

 immediately.                                         Edward Steichen


NEW YORK. The subject of the case was a yellow piece of metal, the identification of which had left the American authorities per­plexed. Its slender tapered form, 135 cm high, polished all over like a mirror, suggested to some a manufactured object—the

purpose of which, however, remained a mystery—and to others a work of art, as good as any others in the great museums of the world. So began in New York, in 1927, one of the most famous cases on the definition of a work of art: Brancusi vs. USA.

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 of the said sculptors; 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 New York show in 1913, at the armory, Brancusi’s sculpture had provoked incongruous descriptions, such as “an egg on a sugar cube” and later, in 1926, “a drainpipe coupled with a coat of chainmail.” As such, was it part of the accepted aesthetic of the day? There was no consensus as to the brilliance of his radicalism. The trial of 1927-28 was a perfect opportunity to debate before a court the essential questions concerning the criteria for determining what was a work of art? Who was an artist? And who was to judge these questions?                                                                                                                                     Margit Rowell




Questioning by Mr. C.J. Lane:

Where do you reside Mr. Epstein?

In New York.

What is your profession?

I am a sculptor.

How long have you exercised this profession?

I have been a sculptor for thirty years in New York, Paris and London.

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 and in London in the Tate Gallery, which is the National Gallery in Britain for modern works. I have a piece in the Manchester Art Gallery, the Glasgow Art Gallery, the

Dundee Art Gallery and in Ireland in the National Gallery in Dublin and in the Aberdeen Art Gallery.

Are you represented in Hyde Park as well?

Yes, I have a work in Hyde Park in London. 

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 from time to time in Paris and in London.

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.

Questions by Mr. C.J. Lane:

Mr. Epstein, will you look at 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 Academy of Beaux Arts in Paris, where I studied for six months.  Leaving there, I went to the School where I studied for about two years.

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.


Did you receive anything in the way of a certificate in writing as an acknowledgement of the work that you have done in these institutions?

I won my way into the Gallery Of Beaux Arts by competition with the entire c1ass, 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.


Your business now is what?

My business here, to exhibit a collection of my own works.

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 Exhibit One?

Well, all sculptures are different.

I asked you if you made anything like 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?


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 by 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 (the mechanic) 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.

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 or 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 creations, 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.


MR SPEISER:  Mr.Epstein, I ask you if you are familiar with the works of Mr. Brancusi?


I hand you a publication “The Arts”, dated July 22,1923, and ask you if you have seen any of Mr. Brancusi’s pieces pictured therein as works of art, beginning at page 18 to 29?

I have seen one of these; this one on page 18.

Mr. Lane suggests that you might enlighten the court as to whether you would think that object (Exhibit One) a bird?

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 whatsoever. 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.

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?


Any rounded piece of bronze then, in other words, could represent a bird?

That I cannot say.

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?


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?


In your thirty years experience you have met many other sculptors and artists?

Yes, Sir.

You have seen their works?


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. If 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 ft to the court so as to illustrate you 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?



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 recognized by the courts must be considered.

The object now under consideration is shown to be for 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 a 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 Etats-Unis:  un procès historaque, 1928, (Paris, 1995) 142w.

FFr144 ISBN 2876601648. The Art Newspaper is grateful to the publishers for permission to publish Margit Rowell’s preface.