Can Inspiration Overstep Its Bounds?

Can Inspiration Overstep Its Bounds?
by Daniel Grant

Courtesy of Handmade Business

You decide: A young artist named Lauren Clay exhibited seven hand-painted papier-mâché tabletop sculptures at the annual "Grounds for Sculpture" exhibition in Hamilton, New Jersey. Each work was based in small scale on the welded steel Cubi assemblages of David Smith, which are 8 to 10 feet in height. When the David Smith Estate got wind of Clay's work, several weeks before the show opened in mid-October 2013, it was not amused. They only saw copyright infringement and demanded via VAGA, the Manhattan-based copyright licensing organization, that the artist request permission to display this body of work. VAGA's first demand was that Clay's work be destroyed; then it modified its directive that the work could be exhibited at Grounds for Sculpture--accompanied by some plaque that indicated that the David Smith Estate neither approved nor endorsed the artwork--but would never again be shown after that and never sold.

Did the Artist Break the Law?

"We don't think Clay's work constitutes fair use," said Robert Panzer, VAGA's executive director, referring to the exception in the copyright law that permits the use of copyrighted material when some sort of commentary, explanation, or parody is being made, or when changes to the image of the older piece transform it into a substantially new and different artwork. "The artist didn't make enough changes."

That is a reasonable claim, if the law was clear on how much change is enough.

Cubi XII, 1963, by Davis Smith

Cubi XII, 1963, by Davis Smith, is stainless steel, measuring 109-5/8 by 19-1/4 by 32-1/4 inches. It is located at the harishhorn Museum and Sculpture Garden, Smithsonian Institution, Washington, D.C. Photograph by David Smith ©Estate of David Smoth/Licensed by VAGA, New York.

Cubi XII

No Side to fall in (Cubi XII) 2012, by Lauren Clay, is made of acrylic, paper, and wooden armature. It measures 18-1/2 by 7 by 3 inches.

How Much Is Enough?

"I'm afraid there are no clear rules," said Amy Adler, a professor at New York University's School of Law. "Because of how court rulings have evolved over the past 20 years, the law is unclear, and that creates a climate of uncertainty, affecting artists, dealers, and lawyers."

Adler viewed Lauren Clay's smaller versions of David Smith's Cubi as acceptable examples of fair use. "Clay's work appears to be an interesting commentary on the type of Abstract Expressionist art that David Smith's work embodies."

In contrast to the large scale and polished steel of the Cubi, Clay's "small size, soft materials and decoratively colored surfaces seem like a feminist response to the earlier work, which fits the definition of fair use."

For her part, Clay said, "I don't consider myself an appropriation artist," adding that, "copyright law is not a factor in" her work.

Cubi XXVII, 1965, by Davis Smith

Cubi XXVII, 1965, by Davis Smith, is stainless steel, measuring 111-3/8 by 87-3/4 by 34 inches. It is located at the Solomon R. Guggenheim Museum, New York. Photograph by David Heald. ©Estate of David Smoth/Licensed by VAGA, New York.

An Understanding Is Reached

Panzer stated that the David Smith Estate did not believe that Clay's work merited any legal action. VAGA's larger concern regarding derivative works, however, necessitated some comment on what appeared to be decorative miniature reproductions. Panzer emphasized that the matter was resolved without a lengthy dispute and documented it in the following joint statement, which has not been reported in previous coverage: The Estate of David Smith and Lauren Clay are pleased to have resolved their differences in a manner that both parties feel protects and honors the freedom of artistic expression, the integrity of the creative process, and the rights of artists and their legacies. The Estate and Ms. Clay wish each other well.

The uncertainty over how the courts might have ruled on Clay's work as "fair use," if a lawsuit had been filed, has fueled a debate, and indicates the prudence of sometimes taking, in Panzer's words, "a middle ground."

The Debate Rages On

Increasing the confusion over what may or may not constitute copyright infringement were the two divergent rulings on the lawsuit filed in 2008 by photographer Patrick Cariou against appropriation artist Richard Prince.

Prince made use of 30 photographic images he found in a 2000 book by Patrick Cariou called Yes Rasta, documenting the community of Rastafarians that the French photographer had encountered in the mountains of Jamaica. Prince used these images for collage paintings that were exhibited in 2009 at New York's Gagosian Gallery and later reproduced in a book published by Rizzoli. In his artwork, Prince scanned Cariou's images of people and landscapes into his computer and printed them directly onto his canvases, defacing them in limited ways (placing an electric guitar in one Rastafarian's hands and daubing paint onto the face, for instance), as well as adding other elements to the paintings.

Can Art Be Legislated?

Prince "didn't transform these photographs, he just used them," according to Cariou's lawyer, Daniel Brooks. Apparently, a district court judge agreed, ruling in 2011 that if "an infringement of copyrightable expression could be justified as fair use solely on the basis of the infringer's claim to a higher or different artistic use ... there would be no practicable boundary to the fair-use defense."

However, in 2013, an appellate court reversed the decision, ruling that Prince's paintings "have a different character, give Cariou's photographs a new expression, and employ new aesthetics with creative and communicative results distinct from Cariou's."

Both the district and appellate court decisions have been criticized by lawyers who specialize in intellectual property and the arts in general for not offering guidance on what constitutes fair use of copyrighted material.

Cloud on my single-mindedness (Cubi XXVII) 2012, by Lauren Clay, is made of acrylic and paper. It measures 30 by 24 by 12 inches.

The Solution Is Unclear

"If a client like Lauren Clay were to come to me, asking if her work violated the copyright of the David Smith Estate, I'd have to shrug my shoulders," said Chicago arts lawyer Scott Hodes. "The decision by the appellate court in the Prince case just tossed everything up in the air. That court seemed to say that almost anything is fair use if there has been any change."

Boston, Massachusetts, lawyer Nicholas O'Donnell agreed that the appellate court's decision has made copyright law less clear than before. "Anything but a photocopy can be seen as transformative these days," he said. "Fair use has become so expansive as a concept that it is hard to draw lines around it."

An Artist Is Disinvited

The confusion extends beyond the legal community to individual artists. In October 2013, printmaker David Dodde was forced by the city manager of Grand Rapids, Michigan, to withdraw from the city's annual ArtPrize outdoor exhibition. Dodde's entry was an existing Alexander Calder sculpture--the monumental painted red steel sculpture La Grande Vitesse--to which he had affixed magnetized white floral designs and retitled Fleurs et Riviere. Some have compared the surface design to a Hawaiian shirt.

Before the exhibition had officially opened, City Manager Greg Sundstrom sent a letter to the Alexander Calder Foundation, asking if Dodde's temporary and removable additions to the Calder works, which had been commissioned by the city in 1967, were acceptable. The Calder Foundation responded in writing, describing Dodde's decorations as an "abomination." Receiving this response, the city manager told the artist to remove the white metal flowers.

"We thought it was a dumb thing the artist did," Alexander S.C. Rower, president of the Calder Foundation, said. "We thought it was in bad taste. If the city had wanted to make those changes in the work permanent, that might have triggered a lawsuit." However, since Dodde's decorations were temporary and could be removed without damaging the Calder sculpture, the Foundation only registered its disgust. Fearful of a lawsuit, however, the city manager chose to pull the Dodde.

"I live with an attorney," Dodde said. "I asked her, 'Is it illegal?' She said, 'Nope.'"

Art Without Approval or Apology

The title of Calder's work means "the great speed" and refers to the whitewater area of the nearby Grand River. Dodde claimed that his Fleurs et Riviere comments on the original sculpture by including the flowers to show "the flowing motion of the river through the way one's eye moves when looking at the sculpture. I'm reintroducing the public to the Calder piece, infusing a new vision for something we all take for granted, and showing my love for it."

Dodde noted that in his work he often uses copyrighted images and has had no legal problems in the past. "It's like punk rock. You don't ask for permission; you ask for forgiveness." He also claimed to have applied what he called the "10 percent rule," referring to the belief among many artists that if one makes a certain number of changes to an existing image that it has transformed the older work of art into something new and legally valid.

Amy Adler claimed that the fair-use exception to the copyright law is "intended to encourage new creation," but that case law has been "unsatisfying" and that it is "extremely difficult to say what the law is or predict how a court will rule."

Until this evolving realm of law is resolved, it is likely that a punk rock ethos and a sense that the least little change makes a derivative work transformative will guide the actions of some artists, keeping the courts busy for some time to come.