But is it art? ​

"Brancusi versus the United States"

historic trial reenacted

27 June 2016, Palais des droits de l'homme


European Court of Human Rights




A first of its kind event at the European Court of Human Rights, “Brancusi vs the United States” is a reenactment of a historic trial performed by judges and members of the Registry of the European Court in Strasbourg.



Created by: Andra Matei

Direction: Martyn Symons

Scenography: Arnaud Behety



Judge Waite - David Crowe

E.Steichen - Julia Laffranque

J. Lane - Natalia Kobylarz

M.Higginbotham - Mihail Stojanoski

J.Epstein - Martyn Symons

H.Fox - Vugar Fataliyev

T.H.Jones - Katarina Bikard

J.Aitken - James Drake

Law clerck - Janis Symons




27 June 2016

Small hearing room, European Court of Human Rights, Strasbourg, France




Excerpts from Katarina Bikard’s interview with Andra Matei

ECtHR NewsBulletin, May 2016 

What is the Brancusi trial about? 

Brancusi v US took place in New York in 1928 and grabbed the headlines at the time because of its debate surrounding the question of what is meant by “sculpture” and what is a work of art. The work of art in question was a sculpture called “Bird in Space” by Romanian sculptor Constantin Brancusi.“Bird in Space” was a slender piece of bronze, measuring about 135 cm and so well polished that the surface we reflective. It was supposed to represent a bird. When the “Bird” was sent from Paris to New York City for an exhibition curated by Brancusi’’s friend and advocate Marcel Duchamp, US customs said the sculpture was not properly a work of art and thus not entitled to duty-free entry into the country. To qualify as “sculpture” under US law works had to be an imitation of natural objects or the human form. But the “Bird” did not resemble anything at all. So, they registered it in the same category with kitchen utensils. The case sparked public controversy and important debate among the artistic community of the time and started one of the most famous trials in the history of modern art.


Why this trial?

The idea of trying to define an artwork in a courtroom and invite expert witnesses to testify as to what is art and what is not strikes me as particularly topical. A judge and an artist seem poles apart in their interests and areas of expertise and yet it is the duty of the judge to reconcile law with controversial art. But how informed are judges in art theory and form? How acquainted are they with the nature and aims of that which they judge? Who are the experts in art related cases? This trial took place in the 1920s, before the birth of conceptual art. Judge Waite, the judge in this case, asked essentially if non-figurative art, art that was non-representational, was indeed art. Today, when forms of artist expression like body art or performance art raise questions of physical integrity or moral standards, we are essentially asking ourselves the same questions Judge Waite asked a century ago, in the Brancusi trial: What is art and who are the experts? Defining a work of art is a longstanding difficulty for philosophers as much as lawyers but to call something a work of art is not just to classify it but also to say that it has a certain legal status. 



How did you come up with the idea of a re-enactment? 

Earlier this year I designed and delivered the first in-house course on freedom of artistic expression for lawyers of the Registry of the Court. The course looked at how the law has kept pace with contemporary art and the Brancusi trial was one of the first cases we discussed. When I read the trial script, I thought it was brilliant. It was witty, surprising, funny. The burden of proof was on the Government who argued the sculpture was not a ork of art and their attorney’s main tactic was to bully the witnesses for Brancusi, who spoke of the “Bird” in terms of balance, design, harmony, and proportion. When Edward Steichen, famous photographer of the time and expert witness in the trial, says the sculpture is a bird becasue it gives him the feeling of a bird, the judge asks if he’d take a shot at the it if he saw it in a forest. The cross-examination is colorful and dramatic. It makes for a good speactacle.

croquis Brancusi .jpg


How did you manage to convince your collegues to get involved in the project?

I adapted the original transcript of the hearing to the current script and sent it to several of our colleagues at the Court, including to Julia Laffranque, who I knew was a thespian. Her response was very enthusiastic. Not only she loved the idea but she convinced the amazing Martyn Symons with whom she had previously worked on “Who’s Afraid of Virginia Woolf” to direct the play. The rest of the cast was a bit more difficult to convince but the first reading got them all on board. I'm very grateful for their commitment to the project. Despite the busy schedules, rehearsals are always with full cast. I’m guessing this is also because we’re having a lot of fun doing it. But what is even more impressive is that except for Mihail and Julia none of the cast has ever performed in a play before. So this is very exciting to everybody.




What are your expectations for this project?

A point we’d make every time in our course on freedom of artistic expression, was how easily a work of art can be dismissed as pointless when there is no explanatory background when we ignore art’s ontology. The re-enactment is in a way a continuation of our discussions surrounding art and law. Judge Motoc has kindly accepted to introdce the play and present briefly the work of Constantin Brancusi which I believe is essential for understanding what is at stake in this trial. So, I am hoping the performance will spark debate among our colleagues, not only about the role of the judge as an arbiter of taste but also whether it is appropriate to judge art in a courtroom at all.



Invitation reenactment A.JPG



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