Brush v. Aten

Is an artist justified in painting into a portrait of a society lady extra pounds of flesh and a cow-pasture background, complacent with bovine browsers ? That is what Manhattan jurors were called upon to determine recently in a suit brought by George De Forest Brush, a foremost U. S. artist and a member of the National Academy, against Mrs. Florence Brooks Aten, of Manhattan, founder of the Brooks-Bryce Foundation for the furtherance of friendly relations between Great Britain and the U. S. It happened on a brisk autumn morning in 1925 that Mrs. Aten left her hunting lodge, Shinbone Shanty, in New Hampshire, to visit Artist Brush whose studio was only 30 miles away. She suggested to him a portrait of herself, suitable alike for drawing-room ornament and circular publication. (The circulars were to be used in raising funds for the Brooks-Bryce Foundation.) They agreed upon $10,000 as a fair price. When, after some ten sittings, the completed portrait was shown, Mrs. Aten commented as follows: "The coloring is magnificent and the face so beautiful -- but it doesn't look like me. Besides the left arm is out of the drawing and the right hand is too stubby--fingers too short. I think you have painted a fine work but not my portrait." Other criticism indicated that Mrs. Aten thought the picture hinted she weighed 250 pounds, which is inaccurate, and that the cows appeared to be incongruous. "I would give anything for a good portrait," she said. "Won't you touch it up?"

The artist sailed for Florence, Italy, took the portrait with him, "touched it up," returned the work with an additional charge of $7,000, above the original $10,000 which had already been paid. At this Mrs. Aten balked.

Her counsel, Clarence B. Mitchell Sr., argued as follows: 1) The background was carelessly executed, therefore unsatisfactory. 2) An artist, like any other common artisan, must give satisfaction before he is entitled to his fee. If, as is the case here, the product is not satisfactory, alterations can be demanded, free of charge.

Mr. Brush's counsel, Randolph Hicks, countered this way: 1) An artist must be left to work according to his own lights, standards and conception. 2) Mrs. Aten said "she would give anything."

The jury awarded Artist Brush $4,500 of the $7,000 he asked.

Observers interested in the case because of the possible precedent involved in the decision, recalled that artists have often been more or less seriously rebuked for free interpretations. Once Tierney, the famed English landscape painter, while looking over his easel at the Thames half-hidden behind a clump of bushes, was approached confidentially by a rustic, who, after contemplating the painting, ventured: "Did you ever try photography?" "No," was the rapt artist's reply. "It's a lot faster," persevered the native. Then after a pause, "And it looks a deal more like the place, too."

It was also recalled that no less brilliant a critic than John Ruskin had charged James McNeill Whistler with demanding exorbitant fees for portrait work and that in the course of the controversy, Whistler had described in detail the methods and labors incidental to portrait painting. Just so did Artist Brush at his trial.