o Issue: should this ‘bird in flight’ sculpture by Brancusi be allowed into the US tax-free?
§ Looks at Paragraph 1704 of the tariff act of 1922
· The terms “sculpture” and “statuary” as used in this paragraph shall be understood to include professional productions of sculptors only”
§ What is a professional production?
· Waite takes a shortcut
o describes Brancusi as a professional sculptor à everything he does is a professional production à the sculpture qualifies under Par. 1704 to come into US tax-free
· if he decides Brancusi isn’t a professional sculptor, then he has to decide whether this piece meets the criteria of a professional production, whatever that might be
§ What is a sculpture? [Judge Waite’s criteria]
· Highly ornamental [observe it] –NOT USEFUL
· Pleasing to look at
· Not mass produced
§ There is an existing Olivotti rule that describes a sculpture as “imitations of natural objects, chiefly the human form, and true proportions of length…”
· However, Judge Wait said that was an old rule, and does not apply now because of a new emerging school of art
§ What is wrong with the proposition that the law can deal with art that is ‘changing’? [referencing Waite’s opinion that courts should consider emerging new school of art]
· Someone makes those rules!
§ Par. 1704
· “professional production of sculptors only”
o what is a professional? Is it the quality that is produced of professional quality?
o Tries to earn living by creating sculptors?
o non mass production kind of art
o if its an object of utility, then you would have industry producing it