By Irina Tarsis, Esq.
Think “Paper, rock, scissors;” David v. Goliath; momentary v. permanent; feminine v. masculine; appropriation v. original; transformative v. derivative.
In the 1960s, David Smith (1906-1965) created a series of monumental steel sculptures called “Cubi.” In his own words, he “intended the reflective surface [of the Cubi] to be part of the concept.” Half a century later, Lauren Clay studied Smith’s works and his ideas about the surface of the geometrically shaped sculptures and created a series of her own. She reproduced some of the Smith’s compositions, as smaller decorative items, using different medium to craft a different surface. Her works, constructed from paper, cardboard and papier-mâché are not light-reflective but reflective of crafts and decorative arts and not industrial and masculine aesthetic of Smith.
In an Artist Statement, Clay explained that she distinctly wanted to comment on Smith’s works and the ephemeral nature of art, choosing to render the familiar awesome shapes as dainty tabletop sculptures, radically different from the effect Smith sought to accomplish. Regardless of the dialogue Clay engaged in with Smith, and the dichotomy between the light paper models and the strong metal constructions, the Smith Estate objected to Clay’s use of Smith’s sculptures, alleging her reproductions were in violation of the copyright. Opinions may vary whether or not Clay’s works are protected under the fair use doctrine, but in light of the recent Cariou v. Prince, Clay clearly was not infringing Smith’s rights (read “Is Cariou v. Prince Headed to Supreme Court?“). Her artist’s statement clearly explained why she specifically chose to transform works of David Smith and no other master of post modernist art. Richard Prince on the other hand chose to appropriate works of a relatively unknown photographer, Patrick Cariou, without any apparent reason and still he won on fair use grounds.
Last month, attorneys negotiating on behalf of Lauren Clay, and the Estate of David Smith (Richard A. Altman and Donn Zaretsky respectively) reached an agreement. In the jointly issued statement, approved by both sides, the parties admitted that they have resolved their differences, stemming from a copyright (infringement versus fair use) dispute, “in a manner that both parties feel protects and honors the freedom of artistic expression…” However, some have interpreted the agreement as limiting Lauren Clay’s artistic freedom.
Opinions and tempers ran high, if mostly among third parties (see for example Lexology or Clancco, as those in support of the fluid fair use and rigid copyright protections opined on who had the upper hand in the dispute. The debate that sparked over Clay’s work may be characterized as a round of the popular children’s game: Paper, Rock, Scissors. Here scissors (metal) may or may not have trumped paper (papier-mâché) due to interpretation of the copyright law (stumbling block/rock).
The settlement reached by the parties in the Clay-Smith dispute remains private leaving little guidance for young artists who must decide for themselves how far they are wiling to push the envelope of the fair use protection as they forge their own artistic path.