Related Story: READ The Case of Brâncusi vs. the United States
From the Closer Look in the Art Institute of Chicago app, available for iOS devices through the iTunes Store.


"How They Know Its ‘A Bird’ and Are Sure It is ‘Art’," press clipping addressing Case of Constantin Brâncusi vs. the United States of America, c. 1927.

In 1926 the photographer Edward Steichen purchased a bronze cast of Bird in Space from Brâncusi’s Paris studio and brought it back to New York. United States law stated that there was no customs tax on a work of art as long as its value was declared by the owner; when Steichen arrived with the sculpture, however, he was taxed over $200 on the grounds that the smooth metal object was not art. Customs officials declared the work was in the same category as domestic utensils and hospital supplies. The following year Steichen went to court to prove that Bird in Space was, in fact, a work of art. To do so, he had to show that the object was an original work, created by an artist with aesthetic value. The court ultimately agreed with Steichen but the trial stands as an infamous moment in the debates over aesthetic taste and the definition of art.

Justice Waite to photographer Edward Steichen: What do you call this?

Edward Steichen: I use the same term the sculptor did, oiseau, a bird.

Justice Waite: What makes you call it a bird, does it look like a bird to you?

Edward Steichen: It does not look like a bird but I feel that it is a bird, it is characterized by the artist as a bird.

Waite: Simply because he called it a bird does that make it a bird to you?

Steichen: Yes, your honor.

Waite: If you would see it on the street you never would think of calling it a bird, would you?

[Steichen: Silence]

Young: If you saw it in the forest you would not take a shot at it?

Steichen: No, your honor.

Affidavit from Brâncusi stating that Bird in Space is an original work of art: I conceived it to be created in bronze and I made a plaster model of it. This I gave to the founder, together with the formula for the bronze alloy and other necessary indications. When the rough cast was delivered to me, I had to stop up the air holes and the core hole, to correct the various defects, and to polish the bronze with files and very fine emery. All this I did myself, by hand; this artistic finishing takes a very long time and is equivalent to beginning the whole work over again. I did not allow anybody else to do any of this finishing work, as the subject of the bronze was my own special creation and nobody but myself could have carried it out to my satisfaction.

Justice Waite to sculptor Jacob Epstein: 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?

Epstein: I certainly do.

Waite: When you say you consider that a work of art, will you kindly tell me why?

Epstein: 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.

Waite: 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?

Epstein: It might become a work of art.

Maurice Speiser, lawyer for Brâncusi, to sculptor Robert Aitken: Now, Mr. Aitken would you mind stating why this [Exhibit 1] is not a work of art?

Aitken: First of all I might say it has no beauty.

Speiser: In other words, it aroused no aesthetic emotional reaction in you?

Aitken: Quite no.

Speiser: You would limit your answer exclusively to the fact that so far as you are concerned it does not arouse any aesthetic emotional reaction?

Aitken: Well, it is not a work of art to me.

Speiser: That is the sole reason you assign for it?

Aitken: It is not a work of art to me.

Official judgement by Justice Waite: 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.