David Smith Copyright Dispute Delays Brooklyn Artist’s Show

Lauren Clay: Cloud on single-mindedness, 2012, paper, acrylic, 30 by 24 by 12 inches. Courtesy the artist.


Sometimes the show must not go on, at least not on time.

After a copyright complaint from the estate of artist David Smith (1906-1965), a New Jersey nonprofit has indefinitely delayed the opening of a show by a young Brooklyn artist. Lauren Clay’s works re-create David Smith’s abstract “Cubi” sculptures at tabletop size in materials like papier-mâché, some with faux wood or marble finishes.

Originally scheduled to open at Grounds for Sculpture on Oct. 19, the exhibition was to show six pieces by the 31-year-old, Brooklyn-based Clay that are based on “Cubi.” VAGA, the New York licensing and rights organization that represents the Smith estate, maintains that Clay should have requested permission to reproduce the works. Failing that, VAGA has asked that the artist come to some understanding with the estate. In e-mails to Grounds for Sculpture and to the artist, Clay and VAGA’s executive director told A.i.A. in phone interviews, VAGA has suggested Clay agree not to show the works again, or to promise not to sell them. They have also proposed that she display an artist’s statement indicating that the works were made without the estate’s permission.

“We are honoring the estate’s request,” said Grounds For Sculpture chief curator and director of artistic development Thomas Moran, speaking to A.i.A. via phone this week. “The estate has legitimate issues with the work.”

At issue is whether Clay’s works are protected under “fair use” provisions of copyright law, which allow for artists to quote or copy from other artists if the new works make a sufficiently novel commentary. The clash follows other higher-profile cases that have gone to trial, such as Cariou v. Prince. That case was decided in April in favor of appropriation artist Richard Prince, who used blown-up versions of photographs by Patrick Cariou in a series of paintings.

Clay’s works are partly about the anxiety of influence, the artist told A.i.A.

Clay has not responded to VAGA’s letters except to convey that she is seeking counsel, she told A.i.A. by phone. In an interview last week with artinfo.com, she dismissed the estate’s claim that she should have requested permission to create her work. She told A.i.A. that some of the works have been exhibited twice before, once in 2011 with her dealer, New York’s Larissa Goldston Gallery, and once in 2012 at a pop-up exhibition on New York’s Lower East Side. Goldston declined to comment for this article.

The Clay works in question are priced at $3,000 to $5,000, the artist told A.i.A. None has yet been sold. Smith’s CUBI XXVIII (1965) became the most expensive contemporary work of art sold at auction to date in 2005, when it fetched $23.8 million at Sotheby’s New York.

Moran told A.i.A. that in the absence of an agreement between Clay and the Smith estate, Grounds For Sculpture, a 42-acre sculpture park in Hamilton, N.J., declined to pick up the works from Clay’s studio in time to allow the Oct. 19 opening. Instead, the current show will remain on view until the situation is sorted out, Moran said.

“It’s sad, is what it is,” Moran told A.i.A.

“The problem we saw is that the works are too derivative,” VAGA executive director Robert Panzer told A.i.A. in a phone interview. “Artists often create limited-edition tabletop versions. There’s always a market for them among people who can’t afford a monumental sculpture. Yeah, she changed things here, but it’s so similar to a Smith work.”

“So she makes it smaller,” he added. “So she makes it in different colors.”

Others see original content. Several art lawyers have described the estate’s complaint to A.i.A. as dubious.

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. In his view, Clay’s quotations of Smith’s work clearly qualify as fair use.

Party to this conflict between a young artist and an Ab-Ex giant’s estate is VAGA, which administers rights to create derivative works and charges licensing fees.

“Organizations like VAGA and Artists Rights Society are a convenience for rights holders, and they provide a service for people who want to license works,” art lawyer Amy Goldrich told A.i.A. by phone last week. “On the other hand, they’re working for a client whose aim is to generate revenue. I don’t know that that is conducive to the best judgment about which cases of supposed infringement are worth pursuing and which aren’t. And it seems to me that this is a clear case of fair use.”

The Smith estate has not filed a lawsuit, nor is it currently planning legal action, Peter Stevens, the executive director of the Smith estate, told A.i.A. by phone this week.

He provided the following statement:

“David Smith championed the integrity and rights of artists; it is not the Estate’s position to hamper artistic creativity. We do, however, take it as our mission to preserve the integrity of David Smith’s work.

“The Estate of David Smith does not authorize the reproduction of David Smith’s sculpture in any scale or medium. If Ms. Clay chooses to take action to assert her right to produce decorative, miniature copies of David Smith’s work, we will instruct VAGA, our agent in matters of copyright, to defend our position within the limits of the copyright laws, which are intended to protect, not limit, artists’ rights.”