Artist and Smith Estate Settle Copyright Dispute
The David Smith Estate and Lauren Clay have settled their dispute concerning Clay’s appropriation of Smith’s sculptures. In the settlement, Clay agreed not to make any more work based on Smith’s work without permission.
If you follow my posts, you already know that I believe Clay’s works are derivative and not transformative. Of course, not everyone is as wise as yours truly. My good and beloved friend, Alfred Steiner, believes that Clay’s appropriation of Smith’s sculptures are fair use based on a “gendered” reading of Clay’s work (hers are cute, colorful and tiny and his are rigid, sparse, and upright). Aside from the fact that the gendered reading is presumptuous, essentialist and negatively stereotypical, that critique has been made many a time before by other female artists (Eva Hesse and Rachel Lachowicz come to mind). This is important because one crucial factor that many artists and lawyers seem to forget is that copyright law is meant to promote the progress of science and the useful arts. In other words, copyright law is meant to promote knowledge. If the critique Steiner argues for is true, I question how that tired, cliche, and essentialist critique promotes the progress of anything other than piracy. Stanford copyright professor Paul Goldstein is of similar mindset,
“The [Cariou] 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.”
If we abide by the recent Second Circuit opinion concerning the Cariou v. Prince debacle, where the Court stipulated that what is crucial is not whether or not the secondary work comments on or critiques the copyrighted work, but rather how the two works look side-by-side to a “reasonable observer,” then one is hard pressed to find “new expression, meaning, or message” in Clay’s intentional appropriation of Smith’s sculptures. The change in size, color, and texture would suffice to fulfill the 2nd Circuit’s requirement that “cosmetic” changes are not enough regardless of the artist’s intent/concept. It is unfortunate that the Second Circuit opts for the visual at the expense of the intellectual. By doing so, the Second Circuit rewinds art history and remands the role of contemporary artists back to the 19th Century–to that of the romantic idiot savant.
One can only hope that eventually those who squeal “fair use” in knee-jerk fashion detach their emotional endearment to art as that of a perverse space where artists are seen as performing monkeys for the nouveau cultural elite and where the artist’s only other goal is to satisfy the financial commodification of culture as a symbol of social status.