Monday, March 4, 2024

Artist and Smith Estate Settle Copyright Dispute

Photo CopiesFile under Rodney King.

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.


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  • Excellent statement of your position, as usual.

    But if you recall, I merely pointed out that Clay’s materials and techniques are associated with craft, I did not state or even suggest that these are essentially female things. And I think it’s inaccurate to say that using stereotypically (not essentially) female materials and techniques to critique stereotypically male works is presumptuous and essentialist. The contrast of gendered stereotypes in Clay’s works makes a point without necessarily accepting the gendered essentiality of materials and techniques.

    The constitutional basis for having copyright laws may be the progress of the arts, but asking every use of preexisting work in a new work to move the ball forward is a preposterously high bar. If we put a team of academics on any recent use of preexisting work, no matter how inventive, I am confident they would come up with precedents that would make such use look derivative. The constitution does not require that every work progress the arts. It merely allows for copyright laws to incentivize production of creative works. Stopping Clay from showing her works has no effect on Smith’s production of works. (Of course he’s dead, which begs the question of why he still needs an incentive, but we can assume he might have produced less while living if he thought his heirs would get less once he died.)

    The Second Circuit may have erred in appearing to say that Prince’s expression is fair use because celebrities attend his openings and buy his work, but they did not err in focusing on the visual. As long as we’re in the realm of visual art, that is entirely appropriate. And we are certainly there in this case (Clay and Smith’s sculptures) just as we were in the Cariou v. Prince case (Cariou’s photos and Prince’s paintings). It is instructive to note here that works by conceptual artists such as Lawrence Weiner would rarely be protected by copyright law because words and short phrases are not copyrightable subject matter (I’m putting aside his works of graphic design, which would typically be copyrightable). In other words, copyright does not protects concepts, only expressions. So focusing on concepts over the visual in the context of visual art would be a mistake.

    I don’t arrive at fair use conclusions in the art (i.e., unique object) context by reflex, but by principle–namely that I would prefer to allow people to create one copy of something that in no way effects the market for whatever is being copied over a world where it is essentially impossible (given the dual sledgehammers of statutory damages and attorney’s fees) to make a single, non-market replacement copy of anything at all.

    Oh, one more thing: Yes, the word “progress” is in the copyright clause of the constitution, but what meaning can we give it in the context of art, especially when interpreted by legally-trained judges as opposed to trained aestheticians? Was Demoiselles d’Avignon “progress,” or merely the theft of African cultural property? Was Spiral Jetty “progress” or just a rip-off of ancient art, e.g., The Great Serpent Mound? And you want judges to make these determinations!

  • Nicholas Moenich

    It appears to me that you are obviously blind to and thus contribute towards the male dominator society that Clay critiques. By dismissing such critique as “presumptuous, essentialist and negatively stereotypical” and because it “has been made many a time before;” you act as if feminism and issues of womanhood are somehow not relevant issues in our contemporary culture. By using a photograph of a completely random woman wearing a bikini to caption an article about a serious artistic copyright dispute clearly states that you have obviously little to no respect for Lauren Clay’s views, ideas, her womanhood or for that matter any/all women. While I can entertain your views and ideas on the copyright laws, it is difficult to look past your glaring chauvinism. Perhaps you meant to give your (somewhat?) serious law blog a humorous bent or something, but I think it comes off as being very unprofessional. Oh and the attempted sensationalism by mentioning Rodney King right at the start is another act of extreme poor taste and just completely off the mark.

  • Nicholas,
    First of all, lighten up. This may be a “serious” issue, but it’s certainly not life-threatening. When you have done this for 8+ years as I have, tiffs like this become redundant and absurd. My critique stands. I’m not sure how familiar you are with art history (apparently not very), so Clay’s work may seem deep and thoughtful to you. Good for you.

    I also don’t know how old you are, but the Rodney King mention goes to his “can’t we all just get along” blurb back in the ’90s. Do you remember? If not, you may want to Google it.

    I’m sorry that you take things so serious and politically correct. It’s individuals like you that have created the miserable state of art making we have now. Feel free to stop reading my “nonserious” blog. In fact, I would prefer if you did, and if you receive my newsletter, do hit unsubscribe.

    Have a great and FUN day,

  • Apologies for my belated reply. I believe there are some people desperately awaiting my words of wisdom.

    Alfred, ?I was referencing the comments you seem to have made to Art in America.

    “Made by a female artist at domestic scale in materials associated with craft, the works engage in a commentary on gender and Ab-Ex machismo via their more feminine finishes and materials, said New York artist and copyright lawyer Alfred Steiner in an e-mail exchange with A.i.A.”

    How else can I read “their more feminine finishes and materials,” and “domestic scale” as “commentaries” on gender?

    But that aside, you seem to agree that the constitutional basis of copyright laws is to promote the progress of art. If so, then what is the proper level of review if you think I am calling for a “preposterously high bar”? There has to be a limit otherwise what Professor Goldstein is true, we are basically saying that anything short of piracy is fair use. I agree that copyright laws incentivize production of creative works, but this does not mean that the law allows for the production of creative works for whatever reason. Think about the absurd results we would get under that test.

    Two, although Smith is dead, he has an estate. Does it not, under both property and intellectual property laws, have the right to promote and financially benefit from the works of Smith?

    Three, I have to say that I am disturbed by your insistence on focusing solely on the “visual” aspects of visual art. Not all artists, certainly post-1913, rely on the purely visual or, as some would say, eye candy. Regardless, are you proposing that visual artists receive greater leeway and more liberties than other artists when it comes to copyright laws and fair use? Should “visual” artists receive special protection?

    Four, we’ve discussed the problem with your “singular work” theory before, which collapses under film and music media quite easily. On the visual art front, your theory also rests on the believe that visual art is not a commercial activity. I think you would agree that when one Warhol painting sells for millions we can no longer assume that one object does not hurt another artist’s market. Can we?

    Five, there is artistic progress and then there is artistic progress under law, not necessarily the same. I don’t want judges making artistic or aesthetic determinations more than you do, but I don’t see what the problem is with having experts opine on the merits of the secondary work. And by “experts,” I don’t mean writers who write for art magazines or art blogs, but perhaps having access to historians from the October group or Grey Room, for example, would suffice.

    I will add that, once again, and in relation to Clay’s work, I place much of the blame on our art schools and the current lack of art historical and critical education. Let’s call it enlightenment. I can tell you that if Clay had been one of my students, we wouldn’t be here, and if we were, we would have a good fair use fight in our hands, and I would be the first to defend her work. Sadly, that is not the case. Warm regards.

  • Robert Panzer

    I would like to chime in on this. Disclaimer: I am the executive director of VAGA, the organization that handles the administration of the Smith Estate’s intellectual property.

    I think the crux of the problem for judges and fair use is that they have difficulty with fine art. It’s just too esoteric for them and they get caught up with ideas rather than execution. And in copyright of visual works, I believe that to a large extent, what you see is what you get. And if you believe that creators should have the right to control derivatives. You need to draw the line somewhere, including for fine art.

    For example, a movie based on a book is almost always considered a derivative work, yet it is obvious that the movie looks nothing like the book. But it is fairly easy to tell if the movie is largely based on the book and is therefore a derivative rather than a fair use. The judge doesn’t need to ask the director or the actors what they were thinking and doesn’t need to be an expert (or find experts) on the history of cinema. The problem with fine art is that it is often difficult for the viewer (experts too) to know what the artist is thinking about, what the historical context is, etc. So the experts make it up and the artist is asked what he was thinking about when he created the work. The problem is that it is simple for the artist and expert to come up with any kind of explanation of intent that can make the work sound like fair use. So in one sense, I think part of the Cariou-Prince decision was correct, at least when it comes to fine art. Ascertaining fair use needs to be largely based on what is seen. The average viewer needs to be able to ascertain fair use – at least for the first three factors. Otherwise there is no fair use in fine art except for the most commercial rip-offs. There needs to be some balance.

    Cariou-Prince was also an incorrect decision – on two levels: first, in its setting of a very low threshold for what constitutes enough change in a work to qualify for fair use. Richard Prince throws some paint on a photograph and its fair use?! Please! That’s not the progress intended in the Constitution; and second, in its conclusion that the subject of a new work’s commentary does not have to be the original work itself. Then what’s the point of even having a fair use clause? It’s so broadly defined that it is now all but impossible to ascertain fair use in fine art. Creators and art users need some sort of guidance on this. Perhaps it’s time for Congress to make some changes.

    Robert Panzer

  • As I’m sure you noticed, the Art in America comments were not quoted but paraphrased. I’m surprised that you would be so uncharitable as to think I was attributing essential, gendered attributes to materials and techniques, but I understand how you came to that conclusion based on the language in the article.

    I am not proposing that art be understood as primarily visual. But copyright is not contemporary art, and does not embrace the kind of Continental philosophy that your experts at October or Grey Room so admire. It has no choice but to focus on the visual in the context of “works of visual art,” which do not include a huge chunk of things that are now regarded as art. Of course, courts can make conclusions about the ideas implicit in the visual, and nothing in the Cariou v. Prince decision prevents that. It does allow for fair use where no commentary or criticism is apparent, but I do not believe it suggests that such commentary or criticism is no longer relevant–just not necessary. In other words, commentary or criticism can still go a long way towards a finding of fair use, but it is not absolutely necessary.

    My singular work theory does not collapse under film and music media, it just rarely applies given that film and music are rarely made in unique copies. The single work idea, as I’ve said before, is not a panacea, but it could help to resolve many cases involving art given that art often involves single, non-mass-produced objects.

    I want a bright-line standard that resolves many cases of fair use without plausible economic harm to copyright holders while minimizing the discretion of judges. You want a nebulous standard of progress that would be costly to apply (battle of experts) and would require judges to consider and make determinations based on abstruse postmodern theories. And I thought you were a conservative.

    It’s hard to believe that you think gender-based critique is an anachronism because a few people did it in the 1970s. As long as there is gender-based injustice, such critiques are still important, regardless of whether you think a particular critique is novel or cliche. Given that naive position, it’s even tougher to believe that your expert tutelage would have had such a definite influence on Clay.

  • Alfred,
    Good points, but I do not think this is an issue of conservative vs. liberal, unless you’re arguing that one should have unimpeded and unquestioned access to private property.

    Although I sense a distaste on your part for art criticism (October et al) and feel that we’re going in circles, I do believe I am beginning to understand your argument, flaws and all. Let me explain. On my flight down to Ft. Lauderdale, I had the distinct pleasure of listening to Metallica’s “Kill ‘em All” album on my iPod (all of which were downloaded and paid for via i-Tunes). What a treat that was (the listening; the purchasing hurt my pocketbook). It was more of a treat realizing that I do also quite like a Metallica cover band from the New Jersey region. This cover band, “Misstallica,” is comprised of four women who play amazing cover versions of Metallica’s musical ouvre. Of import is the fact that Misstallica obtains permission to perform these cover songs. I must also admit that Misstallica plays Metallica songs much better than Metallica. Now, I bring this to your attention because I think this musical epiphany of mine elucidates the crux of our disagreement as to copyright and contemporary art. You find pleasure in Lauren Clay’s work just like I find pleasure in Misstallica, the only difference being that Misstallica obtains permission and yet that permission in no way impedes or affects the pleasure I receive from listening to Misstallica.

    This leads me to a crucial point in our argument which I have not yet made clear. I am not opposed to cliche criticism at all just as I’m not opposed to cover bands. Much less am I opposed to critiques based on gender or other identity issues. So what does this mean? It means that Clay has three options, all quite viable:

    Make and present the work as is and take a gamble on the legal repercussions.
    Obtain permission or license the underlying copyrighted work (the former seems to have happened).
    Or, make more speech, thus making the “copy” more critical and reflective.

    There is a fourth option of not making any work, but that would be preposterous. So, as I hope you gather, I am not opposed to critiques of the injustices of this world. I am, however, opposed to the redundancy in tired critiques, be they of conceptual art, pop art, architecture, heavy metal, Marxism or gender. If you’d like more than a few examples of great “feminist” critical artwork, I would point to Sturtevant, Mary Kelly, Cindy Sherman, and more recently, Andrea Fraser. They’re there and they’re not monotonous.

    So, it’s not being naive; it’s desiring the same level of educational rigor you and I had the fortune of experiencing in our respective law schools. I’m sure there is pleasure in reading Pierre Leval’s seminal law review article in red-colored font on archival paper. But that’s not transformative, nor is does that promote the progress of knowledge.

    Let us put this negativity aside and focus our collective energies toward a more just and better world. Don’t you agree?

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