An exhibition of the 31-year-old artist’s work was scheduled to open at the Grounds for Sculpture in Hamilton, NJ, on October 18, but due to allegations of possible copyright infringement by the estate of Abstract Expressionist sculptor David Smith, that show may not go on.
Clay’s exhibition was to include seven sculptures that reference Smith’s Cubi works — his looming welded-steel assemblages of delicately balanced geometric shapes with brushed gestural surfaces. Unlike Smith’s austere sculptures, which are eight-to-ten feet tall, Clay’s works are colorful, mostly smaller tabletop iterations, roughly 18 inches tall, and are made from materials like papier-mâché and hand painted faux woodgrain.
When the estate became aware that Clay was planning a show including these referential works, it reached out to Clay through its copyright representative, the licensing and rights management organization VAGA.
“They demanded an accounting of the work,” said Clay, who was openly scornful of what she sees as VAGA’s interference with her artistic freedom. She added that that the organization had asked her to write a letter requesting permission to copy the Smith pieces — “as if I need permission,” she said — and explaining why she was making the work. “Basically they were bullying everyone and intimidating everyone,” she said, to prevent her pieces from being shown.
Initially, she said, VAGA told her that she could show the works only if she agreed to destroy them after the show, but more recently it has asked her merely to promise never to show them again or sell them.
“They should get permission for that kind of thing,” VAGA executive director Robert Panzer told ARTINFO, “because they look just like the original works. The importance of a work of art can lose its value when people reproduce it without permission. There’s ethical questions, legal questions here.”
Panzer, who called Clay’s works “copies,” maintains that he has been trying to find a “happy ground” on the issue and said that no legal action has yet been taken. Although he said he doesn’t recall asking Clay to agree to destroy the works after they are shown, he did request, via Clay's art dealer Larissa Goldston, that they not be shown again or sold — essentially, that they be put “under house arrest” after the show. (Ms. Goldston could not be reached for comment.) VAGA has also asked that the show include wall labels for the works indicating that the David Smith estate was not involved in the creation of the works and does not endorse them.
The situation bears a resemblance to legal cases that have been in the courts recently, most notably Cariou v. Prince, in which the artist Richard Prince was accused of copyright infringement when he painted over the photographs of another artist and called the resulting works his own. The main issue in that case was whether or not Prince’s additions were transformative enough of the originals to qualify as new work and be protected under the fair use doctrine. Though no legal action has so far been taken in the case of Clay’s sculptures, some of the language used by Panzer evoked the same legal questions.
“What she did was make them look just like the original,” he said. “Are you transforming it to make a new idea? We don’t think it’s transformative enough. She didn’t make enough of a comment. She just changed the medium. She said, ‘Look, I’m going to make it colorful and pretty.’”
He said the estate isn’t looking to crush a young, unknown artist, and chalked the situation up to Clay not being familiar with the relevant legal issues. But the artist does seem somewhat familiar with copyright law and with artists who have been ensnared by it in the past, and claims that her sculptures are different from Smith’s and that the estate is missing the nuance.
“Different forms of Modernist art become characters in my work, playing out my own anxiety about art history and my place within art history,” she said. “It’s alluding to something larger than just appropriation. I feel that the work, although it alludes to [Smith’s] work, has become something totally different. You could say it’s a parody, which is legal in copyright laws.”
While she knew it would make some people uncomfortable, she wasn’t expecting her show to cause any controversy. “I’m not a very high profile artist,” she pointed out.
As of today, the status of the show was up in the air. VAGA and the Smith estate do not want the show to go forward unless Clay agrees to its stipulations, and the Grounds for Sculpture said on Wednesday that it was planning to move ahead with a show without the David Smith-inspired pieces. (“At this late juncture,” said Virginia Steel, curator of exhibitions at the Grounds for Sculpture, “we can’t get into a battle of words over this.”) But Clay herself said she didn't think there was much of a show without those works — which were a year-and-a-half in the making — and would consider the exhibition canceled if they were not included.
She is currently seeking legal counsel to help her respond to VAGA and the Smith estate. "I feel that I have a right to exhibit and sell this body work," she wrote in an email, "even after the Grounds for Sculpture show."
But she doesn't have much time: The show is scheduled to open in just two weeks, and installation of the show, which was to have begun this past Monday, is on hold until the situation is resolved.