Friday, September 07, 2012


When the sculptor Constantin Brancusi shipped his revolutionary sculpture, Bird in Space to the United States in 1928, it triggered a firestorm from artists, critics and academics.   

Art News denounced Brancusi's "meaningless sculptures."  Art authority Thomas Jones called the statue "too abstract and a misuse of the form of sculpture."  Poet Jacque Prevert helpfully added, "Down with Brancusi!" 

Others, such as Edward Steichen, Marcel Duchamp and Ezra Pound argued in support of the sculpture.

The battle might still be raging today if the lawyers hadn't stepped in.

The puzzled customs clerk who opened the crate on a New York dock had to decide how to classify the object in order to charge a tariff.  Was it art or not?  If it wasn't, the shipper would have to pay a $240 tariff for "manufactured objects of metal."

It didn't look like any art he had ever seen, so the customs clerk classified it as a manufactured object.  Brancusi filed an appeal and in the famous legal case of Brancusi v. United States, a judge with a busy court docket and limited resources set out to decide if the statue was art.  Unlike a gallery owner, the judge had no conflict of interest. Unlike an academic, he wasn't trying to promote his research to enhance his career.  Unlike an artist, he could not fondle ambiguous endings indefinitely.  His job was to analyze the arguments from both sides and use reason to reach the fairest conclusion he could.   His answer: "while some difficulty might be encountered in associating it with a bird," the sculpture nevertheless qualified as art.

Since Brancusi's day, the definition of art has expanded to the point where it is difficult to identify any boundaries at all.  (As Robert Frost shrewdly recommended, "Don't ever take down a fence until you know why it was put up.")  Art has continued to flee definitions, while the law (which is dependent on definitions) continues to chase after it.

Today, there is a fresh challenge for the law. In New York, the strip club Nite Moves  has filed an appeal claiming it should not be required to pay tax on lap dances because they qualify as art.  The company claims that so-called "couch sales" are exempt as "live dramatic or musical art performances" under the law.  In view of what has transpired with performance art in recent decades, the lawyers will have their work cut out for them.

Yet, I can't think of anyone better qualified to define art in this context than the legal system.


MORAN said...

Do you really think a judge or a lawyer can decide what is art?

Anonymous said...

Kev you are confusing Bird In Space with a stripper pole.

kev ferrara said...

Anon, guess the joke didn't land. Reworded...

Strangely enough, for its best customer, Nite Moves awards a frequent flyer trophy with remarkable similarities to Bird In Space..

(back to address the actual content of the post soonish.)

Donald Pittenger said...

Dave, Dave, Dave. Surely you know that anyone can proclaim himself an Artist. And given his status as an Artist, he is now enabled to proclaim anything he selects (or, better yet, creates) as Art.

I know you're a lawyer, but you really need to drop your shackles and get with the program. :-)

Matthew Harwood said...

Thank you David-very interesting. It reminds me of the Whistler v. Ruskin libel suit. I wonder what other legal presidents there are for defining what the definition of art?

Matthew Harwood said...

Ugh, precedent

Joss said...

MORAN said...
Do you really think a judge or a lawyer can decide what is art?

Do you disagree with this Judges finding?

Now with strippers I think the lines get a little fuzzy, though, I'd be cool calling a lapdance "manufacturing an object" or whatever!

अर्जुन said...

A hood ornament. I prefer Rembrandt Bugatti.

The Devil always wants a piece of the action. God Dåmn the Taxman.

David Apatoff said...

MORAN-- I was actually quite pleased by the logical standards applied by the judge. He did not have the in depth expertise of the academics or gallery owners or the artists, but at the same time his judgment wasn't skewed by the conflicts of interests and personal rivalries that plague those "experts." He understood his limitations, and brought a humility to the task that most of the "experts" unwisely leave behind. And in plain English, he addressed many of the epistemological issues that professors of aesthetics belabor in long, ponderous treatises:

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

Steichen: Yes, your honor.

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

Steichen: [silence]

Judge: If you saw it in the forest would you take a shot at it?

Steichen: No, your honor.

David Apatoff said...

Anonymous-- I never noticed the resemblance.

Kev Ferrara-- So, how does that trophy look on your mantle at home?

(PS-- I get the joke, very funny.)

Donald Pittenger-- Well, that's a good point. Perhaps we need a bar association for artists, to license who can practice?

Matthew Harwood-- The legal cases on the definition of art, like the cases on obscenity in art and the Whistler case you mention, are some of the most entertaining cases in the law. I suspect that the "Nite Moves" case is going to be a doozy.

kev ferrara said...

Judge: Now this chocolate bunny over here (exhibit G) actually looks like a bunny. Do you see that?

Steichen: Yes, your honor.

Judge: And if you saw this chocolate bunny on the street you might recognize it as a bunny.


Steichen: What if suddenly artists had the power to pronounce rules over lawyers and judges. For instance, say an artist came up to you, Judge, and told you that Per Stirpes was a method of pinstriping automobiles, and tort law was about the allocation of fruit pies?

Judge: Absurd. We are in charge of those words.

Steichen: Say, for the sake of argument, that artists were now in charge of those words and the rulings of the court.

Judge: We have everything written down. All our definitions and procedures. It is written and you can't eradicate all that writing.

Steichen: All that writing is now the jurisdiction of artists. They can ignore it if they want.

Judge: We control the definitions of those words. Those are our words. Those are our procedures.

Steichen: I'm just saying for the sake of argument.

Judge: Those are our words. Those are our procedures..

Anonymous said...

lawyers are, after all, artists. arent they?


chris bennett said...

If beauty is in the eye of the beholder…
Then crime is in the conscience of the criminal.

What then of law’s relevance in judgement of these things?
A definition of crime is brought about by consensus.
Our problem regarding the definition of Art for practical cases is that there is no consensus.
The meaningful question is why.

Li-An said...

There is a very funny comic book from Malher - Austrian comic artis- named "L'Art selon Mme Goldruber" - "The Art as Mrs Goldruber sees it"- where Mrs Goldruber has to decide if comics is Art for taxes.