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David Smith Estate’s Recent Allegations of Copyright Infringement Highlights Ongoing Debate On Fair Use and Appropriation Art

Grounds For Sculpture—a sculpture garden and museum in Hamilton, NJ—is under pressure to resolve a developing dispute between sculptor Lauren Clay, whose work is scheduled to open in an exhibit at the garden in under a month, and the estate of late Abstract Expressionist sculptor David Smith. The David Smith Estate is alleging that seven of Clay’s sculptures that she says “reference” Smith’s Cubi works do more than that—the estate claim the seven works infringe Smith’s copyright.


When the David Smith estate became aware that Clay was planning a show including these works, it contacted Clay through its copyright representative—the licensing and rights management organization VAGA. Robert Panzer—VAGA’s executive director—has stated that the estate has no desire to “crush” the young artist (Clay is only 31-years-old) and has been trying to find a “happy ground” to resolve the issue. On the other hand, Clay told ARTINFO that VAGA “demanded an accounting of the work” and added that that the organization had asked her to write a letter requesting permission to copy the Smith pieces. VAGA also initially told Clay that she could only show the works if she destroyed them after the show, though more recently, it asked her merely to promise never to show them again or to sell them. VAGA also asked that the labels describing the work explicitly make clear that the David Smith estate did not endorse their creation.

The status of Clay’s show remains undecided. VAGA and the Smith estate do not want the show to go forward unless Clay agrees to its stipulations. On Wednesday, Grounds for Sculpture stated that it was planning to proceed with the show without the works. Virginia Steel, curator of exhibitions, stated that “[a]t this late juncture, we can’t get into a battle of words over this.” Removing the works would destroy the essence of the show and consequently, Clay would consider the show canceled. She is currently seeking legal counsel to help her respond to VAGA and the Smith estate. “I feel that I have a right to exhibit and sell this body work,” she wrote in an email, “even after the Grounds for Sculpture show.” She also said that the works might make some people uncomfortable, but wasn’t expecting much controversy, as she does not consider herself a high profile artist.

Interestingly, though this dispute has yet to see the inside of a courtroom, it raises much debated issues in copyright infringement suits involving appropriation art and the fair use defense. Codified in the Copyright Act, “fair use” is a defense to infringement that permits some borrowing of an original work for purposes such as commentary, criticism, news reporting, scholarship, or to create works that are “transformative.” To be transformative, a court must examine whether an allegedly infringing work “merely supersedes the objects of the original creation, or instead uses the original work as “raw material,” and “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.” How to properly determine whether a work is “transformative” is hotly debated in art and legal communities. The recent Second Circuit decision in the closely watched Cariou v. Prince case held that artworks created by appropriation artist Richard Prince made fair use of photographs by Patrick Cariou in Prince’s work Canal Zone (See here for our previous coverage of this story). The case has been criticized for failing to provide substantive guidance on what qualifies as a “transformative” work and the discussion goes on.

Though the precise definition of “transformative” remains somewhat hazy, much of the language used both by Clay and Panzer in their interviews with ARTINFO reveals that artists and organizations protecting artists’ rights are already well aware of the typical arguments used by plaintiffs and alleged infringer in fair use cases.

For example, Panzer states that Clay’s works are mere “copies” (rather than a new “transformative” work that made “fair use” of elements of an original) and maintains that he has been trying to find a “happy ground” on the issue and said that no legal action has ye been taken. He told ARTINFO: “What she did was make them look just like the original,” he said. “Are you transforming it to make a new idea? We don’t think it’s transformative enough. She didn’t make enough of a comment. She just changed the medium. She said, ‘Look, I’m going to make it colorful and pretty.’” Here, Panzer refers to unsuccessful arguments made by artists, anticipating that Clay might use them to defend her work. For example, many copyright cases (and in particular a failed fair use argument made by appropriation artist Jeff Koons in Rogers v. Koons) demonstrate that merely recreating an original work into a new medium or adding minor changes will not constitute the creation of a “transformative” work.

Clay also seemed aware of standard fair use lingo, explaining that her work was not copying David Smith’s. In her statement to ARTINFO, she said that “[d]ifferent forms of Modernist art become characters in my work, playing out my own anxiety about art history and my place within art history,” and that her work is “alluding to something larger than just appropriation. I feel that the work, although it alludes to [Smith’s] work, has become something totally different. You could say it’s a parody, which is legal in copyright laws.”

Parodies may be granted protection under the fair use defense. In these cases,  judges must consider references made to and uses of the original work deemed necessary to create a successful parody.

Whatever the ultimate outcome between the David Smith estate and Clay, the show is scheduled to open at the Grounds for Sculpture in just two weeks. The installation of the show has been suspended until the situation gets resolved.

Source: Art Info