Why Make it Pretty.
As developed nations actually produce and manufacture less and less, the aggressive expansion of intellectual property should come as no surprise. Defunct companies that produce nothing are bought and sold for fantastic sums for only the patents they hold, so that one mega corporation may sue another or compromise their markets or limit their competition. We are in the business of producing plans and ideas, and thus any notion set to paper may have economic value. Scholarship is not above the fray, and it is more than a little sad to see areas of intellectual pursuit that depended on community interaction and spirited discourse limited by an economic bottom line. As I have discussed in the past , fair use should provide a mechanism for intellectual and cultural advancement within the framework of copyright, yet the mechanism and enforcement of the principal in the law is sorely lacking.
This brings us to the utter ridiculousness of the estate of David Smith and the rights management organization VAGA seeking to impose limitations on the works of Lauren Clay. Clay has made miniature, brightly colored papier-mâché works that reference (or copy) Smith’s Cubi sculptures, and when VAGA executive director Robert Panzer told Artinfo.com that “The importance of a work of art can lose its value when people reproduce it without permission. There’s ethical questions, legal questions here.” he’s right, only that he’s completely wrong. The ethical and legal questions raised are concerned with free expression, not any hypothetical loss of value to David Smith’s estate. When he states that Clay is not “familiar with the relevant legal issues.” he’s essentially assuming his own interpretation of fair use to be law:
“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.’”
So a female artist has taken sculptures from the cannon of art history that are steeped in overt masculinity and stripped them of their bombastic scale and aggressive materiality by rendering them on an intimate scale in common craft materials? This is essentially the art world’s version of satire, which is clearly protected as fair use. In “making them pretty” Clay has taken a specific form and reversed its meaning by simply manipulating material, color, and scale; if that is not transformative I don’t know what is.
Clay’s is not a deep statement, but it doesn’t have to be to be protected; satire tends to have a limited shelf life after all. The more troubling issue is that nearly any morphology can be owned and any form or geometry can quickly become off limits. It was easy for many to side against Richard Prince as a wealthy artist poaching from a less known photographer and using his work to sell paintings for millions of dollars; but Patrick Cariou’s case of the little guy was ever only going to be the exception. Here we can see the easy abuse of power that will be the common application of limiting fair use. Appropriation may never result in an artwork that is popularly loved, but is a process and principle ever more important to defend for just that reason.
 It plays ‘Hot Shots’ to Smith’s ‘Top Gun.’ (David, not Tony.)
 When one yells that the emperor has no clothes on, once he goes and gets dressed it’s on to the next issue. However as far as the inequality of gender in the art world goes, it’s probably safe to say that the whole business is not likely to be putting a robe on any time soon.
 Which should probably not be a surprise when gene sequences (i.e. life) can be owned as intellectual property.