At the same time, the Korean Consul General in New York, David Namkoong, was displaying interest in the report of the rug shipped from Seoul. Namkoong realized that the rug was one of the national treasures which had been stolen from the palace in Seoul at the outbreak of the Korean War. The rug had hung in the Chang Duk palace, the home of Queen Min. The palace had been made into a national museum where the Koreans displayed historical treasures of the ancient kingdom. Many of these treasures had been among the loot taken by Communists and civilians during the first invasion of Seoul. Mr. Namkoong told a reporter for The New York Times, “The rug is worth about $100,000, if such a priceless national treasure can have a price tag.”
The Korean government and the United States government took the view that young Giltner was an innocent purchaser of the rug and that he had knowingly violated no law in sending the rug home. A Customs agent hurried to Pueblo from Chicago to impound the rug. It was placed in storage for safekeeping in Denver pending its return to Korea. The Korean government reimbursed the Giltners for all the expenses involved in the shipment, cleaning, storage, and insuring of the rug. And thus the case of the souvenir-hunting sergeant and the leopard-skin rug ended on a note of international good will.
The case of the leopard-skin rug presented no difficulty for Customs in establishing the historic and artistic authenticity of the rug. But classification in the field of fine art is not always so simple. Customs has become embroiled in some hilarious and notable cases of this sort.
Early in this century, Congress decided in the interest of promoting culture to permit, free of duty, the importation of paintings, sculptures, and other art objects which could be classified as “fine arts.” It was when Congress began defining fine arts in legal language that the trouble began. For example, a sculpture was defined as something which is representative of an animate object in nature that is in its true proportion of length, breadth, and thickness. When this definition was written, members of Congress did not take into account the abstractionists and the modernists, who hardly view their subjects in their “true proportion of length, breadth, and thickness.”
With the passage of this law, Congress automatically converted every Customs appraiser in the United States into an active critic and judge of the arts. This was so because—whether the appraisers liked it or not—they had to decide whether an import was a work of fine art and thus free of duty. No shilly-shallying about it. It was or it was not subject to duty. Juries of eminent art critics might enjoy the luxury of disagreement; the Customs appraiser had to say yes or no.
This was the situation in 1927 when the distinguished sculptor Constantin Brancusi sent from Europe a highly polished bronze figure called “Bird in Flight.” The bronze was about 4 feet 6 inches high and stood on a cylindrical base about 6 inches in diameter and 6 inches in height.
In his effort to describe the sculpture, Justice Waite of the Customs Appeals Court would write: “The importation ... terminates at the top in a point which might be caused by the cutting of the piece diagonally across and upward until it terminates in an edge. It increases in size as it descends with a slight curve to the middle, from which point it decreases and terminates about ten inches from the pedestal, where it is cylindrical, and from that point it increases in size on a conical shaped base which rests upon a pedestal....
“The piece is characterized ... as a bird. Without the exercise of rather a vivid imagination, it bears no resemblance to a bird except, perchance, with such imagination it may be likened to the shape of the body of a bird. It has neither head nor feet nor feathers portrayed in the piece.... It is extremely smooth on its exterior which is a polished and burnished surface....”
When a Customs examiner first saw this objet d’art, he decided that it could not, from his viewpoint, be called even a reasonable facsimile of a bird. As he studied it further, he was unable to detect the “true proportions” which were necessary to meet the requirements of the law laid down by Congress for duty-free statuary.
His ruling that the famed “Bird in Flight” was not a work of fine art touched off a storm in the art world, with much derisive comment aimed at Customs. Edward Steichen, the importer of the Brancusi work, appealed the examiner’s ruling, and when the case came to trial in 1928, he was flanked by an imposing list of witnesses ready to testify that Brancusi had indeed produced a work of fine art in “Bird in Flight.”