A young Brooklyn artist has settled a copyright dispute with the David Smith estate.
Lauren Clay has negotiated the right, without restriction, to exhibit and sell seven sculptures that reproduce the shapes of works by the Abstract Expressionist artist, Clay told A.i.A. by phone Tuesday.
“The right to make and exhibit my work is very important to me, and it’s not something I’m going to give up easily,” Clay told A.i.A.
The New York based-organization VAGA, which represents the Smith estate, had complained of copyright infringement in e-mails to the artist and Grounds for Sculpture, a New Jersey sculpture park, which had scheduled a show of Clay’s works to open Oct. 18. In the wake of the Smith estate’s complaint, Grounds for Sculpture delayed the installation.
Clay’s lawyer, Richard A. Altman, wrote to VAGA executive director Robert Panzer on Clay’s behalf, arguing that Clay’s works represented “absolutely no infringement” of Smith’s oeuvre. He argued that her works fall within the fair use provisions of copyright law, which allow some copying or quotation under certain conditions.
“Ms. Clay’s sculptures are transformative,” Altman wrote, “not merely duplicative.”
Clay’s works replicate the shapes of Smith’s large metal “Cubi” sculptures at tabletop scale in materials such as paper, and with faux wood grain or marble finishes. The Smith estate, via VAGA, asked that Clay make an agreement with the estate, for example pledging not to sell the works and/or to display them with a statement acknowledging that the works are unauthorized by the Smith estate.
Lawyers disagree on whether Clay’s works should qualify under fair use provisions of copyright law.
“If work like Clay’s isn’t what fair use provisions of copyright law were meant to protect,” NYU law professor Amy Adler told A.i.A. in a phone interview, “I don’t know what is.”
Paul Goldstein, a Stanford Law School copyright professor, sees it differently. While he himself doesn’t think Clay’s works are a slam-dunk for fair use protection, he told A.i.A. in a phone interview, the legal landscape has changed after the decision in Cariou v. Prince. (In that case, artist Richard Prince won the right to use photographs by photographer Patrick Cariou in his paintings.) “It’s hard to see what’s not fair use after that case,” he said.
“The court removed the requirement that the copier comment on the copyrighted work,” he said. “By lifting the comment requirement, the court appears to say that anything short of piracy qualifies as fair use.”