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A New York-based arts foundation that preserves the legacy of artist Robert Smithson has threatened legal action against a Salt Lake City brewery for using an image of his iconic Spiral Jetty on a beer label.
Last year, Epic Brewing Co. launched an ale that it named Spiral Jetty IPA after Smithson's world famous and much-photographed "earthwork" that juts into the northwestern arm of the Great Salt Lake. The label includes asumptuous photograph of the sun setting on the Spiral Jetty with a kayaker in the foreground.
"It's not like we used a sketch that [Smithson] made," says David Cole, co-owner of Epic Brewing. "We used a photographer and bought the rights to the photograph. This is perfectly legal. They have been very slow to act because I think they are trying to figure out what to do."
Dia Art Foundation jointly holds the copyright on the Spiral Jetty with Smithson's estate, says Dia deputy director Laura Raicovich. Smithson was killed in a plane crash three years after he completed the Spiral Jetty in 1970. The foundation owns the rocks, mud and salt crystals that form the jetty, Raicovich says, and the copyright covers any images made of the artwork, which was Smithson's intellectual property.
"The foundation would want to have any images of the Spiral Jetty licensed to be sure the artist's vision [for the artwork] remains in whatever reproductions are made," Rai-covich says. "We want to protect the integrity of the work."
Cole says Dia's complaint is "ludicrous" because the Spiral Jetty, which straddles state and federal land (leased by Dia), has been photographed thousands of times. "This is a case of trying to bully someone," he said, adding that Epic would be willing to discuss licensing if Dia really owns the rights to the Spiral Jetty.
Dia is working to reach an agreement with Epic, Raicovich says. She claims any delay has been logistical between the foundation and Smithson's estate.
Salt Lake copyright lawyer Rand Bateman says snapshots and news photographs of the Spiral Jetty don't violate copyright laws because they fall under "fair use." But "if you are using the photograph for commercial purposes, it's a derivative work and not fair use."
Bateman says Dia may have a second cause of action under the Lanham Act, which covers unauthorized use of a celebrity's identity. The Epic label says: "In 1970 American sculptor Robert Smithson broke artistic barriers and created a 1,500-foot-long rock coil jutting into the Great Salt Lake. Smithson never set limits on himself or his art — why should you?"
"It's not a slam dunk," Bateman says of the case. "But if I were a betting man, I would go with Dia."
This is not the only time Epic has run into problems with labeling. One of their new brews, Jack Mormon Coffee Stout, is based on coffee from local roaster Jack Mormon Coffee.
Cole says the Utah Department of Alcoholic Beverage Control review board found the name, which refers to a lapsed member of The Church of Jesus Christ of Latter-day Saints, "offensive."
"We aren't trying to make fun of any particular people," Cole says. "Our goal is just to make a really good beer."
The DABC barred the beer from being sold in state liquor stores, but it can still be purchased at Epic Brewing.
An epic beer for epic art?
For background about Robert Smithson and his artwork, the Spiral Jetty, visit the website of the Utah Museum of Fine Arts, which has a new exhibit about the artist's influence. See http://umfa.utah.edu/SpiralJetty.
For information on the Spiral Jetty IPA, visit http://www.epicbrewing.com.