By Ray Stern
By New Times
By Amy Silverman
By Stephen Lemons
By Stephen Lemons
By Monica Alonzo
By Chris Parker
By New Times
Last year, sculptor Randy Schmidt created trophies for Downtown Phoenix Partnership's new community service award, known by the acronym DREAMR. But for Schmidt, the "dream" has turned into a nightmare. He says Downtown Phoenix Partnership has bootlegged his original work.
And he's thinking of sending the nonprofit group, composed largely of downtown businesses, a wake-up call in the form of a lawsuit. One local intellectual-property attorney says he may have a pretty good case.
Schmidt, who has taught ceramics at Arizona State University for 28 years, was approached in the summer of 1994 by Downtown Phoenix Partnership, which wanted a creative trophy design for its DREAMR (Downtown Revitalization Effort Awards of Merit and Recognition) awards.
As a starting point, the partnership staff chose an architectural detail of the old First Interstate Bank building in downtown Phoenix, and Schmidt spent two days making a cast of that surface. He covered the detail in multiple layers of latex, then backed the mold with plaster and took it to his studio, where he later created two trophies. He altered the design he found on the building by adding small details and creating an arrow in the center of the piece.
The original mold and the mold used to create the trophies are noticeably different.
Schmidt was paid $1,700 for his initial efforts, and was to receive $250 each for any trophies he produced in later years. He kept the mold. There was no written contract.
Earlier this year, the partnership's marketing manager, Rhonda Bannard, contacted Schmidt and asked him to produce five more trophies for an awards ceremony November 15. (Staff later asked for an additional trophy.) Schmidt was paid $625 up front, with the understanding that he was to pick up the balance due--$875--upon delivery.
Schmidt took the trophies to Downtown Phoenix Partnership October 2, as promised, but there was no check. He left the trophies anyhow.
Downtown Phoenix Partnership executive director Margaret Mullen says the trophies did not meet the partnership's standards; she claims they were of "terrible quality."
"None of the awards were the same color. They were virtually black. They don't look at all like the building element they were supposed to represent. One of them was cracked completely through. And we asked him to remake them to match last year's.
"He said he would not do that."
Schmidt admits the colors varied among the trophies; he blames the clay. And, although the hues ranged between a chocolate brown and an orangey terra cotta, he says none was black.
He says he refused to remake them because there's no guarantee they would ever turn out to be the exact color requested.
"Nothing in any of our correspondence says anything about specification or color," he says. Further, he adds, the crack Mullen mentioned was a tiny firing crack, not a structural deformity.
Schmidt says Mullen and others at the partnership failed to appreciate his art. He's already spent days and days on the work--so much time, he's embarrassed to admit it. And he doesn't understand what problem would be caused by the differences among the pieces.
They will, after all, be given to different people.
"I worked a long time on these damn things. I was really proud of them!" he says.
He offered to sell the partnership the mold, or the six trophies. That offer was deemed unacceptable, so he offered the three lighter-hued pieces the partnership liked, for an additional $125. Partnership officials refused. In the end, the partnership kept two trophies. Schmidt got only his original $625.
Schmidt says he warned Bannard not to make a mold from one of the two trophies, because he had changed the work; it was not simply a mold of the bank building. Bannard, however, insisted the Downtown Phoenix Partnership owned the rights.
The partnership contacted Jeff Schmuki, a sculptor who teaches at the Phoenix Center, the City of Phoenix's recreation program. Schmuki says he was given a trophy and told that it was a copy of the building detail, "part of the public domain." He visited the building, but couldn't see the detail.
"It's pretty high up," he says. "I couldn't get a good look at it."
Schmuki created a mold from Schmidt's work, and fashioned six trophies from it. He was paid $200 for each of them. Schmuki's trophies have a smaller body and a different base than the original awards, and they are glazed in a shiny mauve (the result of a final coat of Mop 'n' Glo, the artist admits).
Schmuki says his mold differs from Schmidt's, but a side-by-side comparison of the Schmidt and Schmuki trophies reveals that Schmuki kept many original Schmidt details, including the arrow in the middle of the piece.
No matter, Schmuki says. "If it's a commissioned work, whoever's doing the commission is paying the artist, and they have say-so. ... The people who do the commission own the piece."
Maybe. But maybe not. Ben Cooper, an intellectual-property attorney at the law firm Steptoe and Johnson, says, "If [Schmidt] copied something from the public domain and made, basically, any kind of creative addition to it, I think he would have an independent copyrighted work. If someone took a mold from him, they are in real trouble if they included any of his added features, even if they added features of their own."
A contract would obviously clear up the dispute, Cooper says. But, he notes, "If they didn't have a written agreement in advance signed by the parties that this was a work made for hire, then [Schmidt] owns the copyright."
Cooper cites a 1989 United States Supreme Court decision, Community for Creative Non-Violence v. Reid, which involves a sculptor who was commissioned to create a statue for a nonprofit homeless group. Although the group had offered direction about the design and subject matter of the statue, James Earl Reid, the artist, created it as an independent contractor. When a dispute arose later, the courts ultimately decided Reid owned the rights to the piece.
The DREAMR awards were handed out last week; they honored Jerry Colangelo, assistant city manager Ray Bladine and the new Phoenix City Hall, among others. Schmidt says he called the city repeatedly in the days before the ceremony, but did not receive a response. "I thought it would be unfortunate if someone in the mayor's office was going to receive a bootleg award," he says.
Now he's trying to figure out what to do with the four trophies rejected by Downtown Phoenix Partnership, and he's assessing his chances in court.
Schmidt says he's not a confrontational person, but the partnership's behavior really bothered him. After all, he says, "They're the people that promote that downtown art thing.