IS IT ART? ASK A LAWYER



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.

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