More on the Clay-David Smith Fiasco
Nicholas O’Donnell has more on the Lauren Clay-David Smith Estate fiasco from the last two weeks. O’Donnell agrees with yours truly that Clay’s work is not transformative.
I agree with Sarmiento that the Clay seems more derivative than transformative. If I sold a ¼ scale Andy Warhol poster that was originally a silkscreen, I would hardly expect to get away with it.
I’m also a bit relieved to read that O’Donnell also notices that the Cariou decision makes it hard to find infringement. Writing on the recent Calder Foundation and Lauren Clay situations, O’Donnell opines, “If Prince puts no onus on the artist to proffer the new critical meaning, don’t both survive infringement claims?”
O’Donnell also has additional thoughts on the Calder situation.
Tags: Art Law, calder, cariou, clay, David Smith Estate, fair use, infringement, intellectual property, Nicholas O'Donnell, prince, sculpture
As Ms. Clay’s attorney, I object to your characterization of the dispute as a fiasco. You’re entitled to your esthetic opinion, and there were legitimate arguments on both sides. But the dispute had the potential to damage Ms. Clay’s career by stopping her exhibition before it could open. So it was no small matter to her, and I was pleased to be able to resolve it. Artist’s rights don’t belong only to the famous ones, you know.
Richard:
You’re obviously upset at my argument that Clay’s work is derivative and not transformative. Fair enough.
However, since it seems that you are new to my blog and to my work, I will not blame you for not knowing that I very strongly believe that artists rights belong to all artists, not just the famous, rich, and celebrity-types. Perhaps if you peruse my blog, especially on the Cariou v. Prince lawsuit you will see otherwise.
I believe the resolution reached by Clay and the Smith Foundation was an apt one, and hopefully one that will serve as an example in the future.
-sms