WHOSE ART IS IT ANYWAY?

MITCH SNYDER, JAMES EARL REID AND AN IMPASSIONED SUPREME COURT CASE

On one side is activist Mitch Snyder, calling his opponent "greedy." On the other is Baltimore sculptor James Earl Reid, saying of Snyder, "I was sucked in by a saint and then the Devil came out."

The passions are nothing if not hot, but come Wednesday, coolly declaimed legal arguments will replace the hyperbole. The U.S. Supreme Court will hear Community for Creative Non-Violence v. James Earl Reid, and the two people who came into conflict over a Nativity scene of three homeless people on a heating grate will fade into the background. The talk will be of copyright law rather than morality, and a debate over creativity and artists' rights will come down to the question of how to define the word "employee."

It is a legal fine point neither Mitch Snyder nor Jim Reid ever intended to explore, but that is only one of the many ironies that surround this case. Start with the list of people supporting Snyder: From IBM Corp. to Time Inc., from AT&T to The Washington Post Co., from Dow Chemical to The New York Times Co., the groups filing briefs on his behalf are an unlikely circle of friends for the controversial activist.

Contrast them with the groups that have lined up amicus curiae (friend of the court) briefs behind Reid: Along with the U.S. solicitor general there are such arts organizations as the Graphic Artists Guild, Volunteer Lawyers for the Arts and Advertising Photographers of America. Reid's case also has the support of such people as Olga Hirshhorn, widow of the benefactor of the Hirshhorn Museum and Sculpture Garden, who have donated money and support to cover his legal costs, which should run about $70,000.

"It's a terrible situation to be in," says Snyder. "To have IBM and Time magazine and all the rest signing on makes us incredibly uncomfortable. We're up before the Supreme Court against Jim {Reid} , but also against all those freelancers standing behind Jim, whom we don't want to be against. There's a part of me that wouldn't feel bad about losing the case."

But among Snyder's new-found allies and at Arnold & Porter, the corporate-law firm that does free legal work for CCNV, losing is not an appealing prospect. IBM and the other companies are involved not because of any altruistic belief in Snyder's work with the homeless; the case has to do with something much more technical, although seemingly capable of arousing equally strong emotions.

Activist v. Artist

At the heart of all this is money. For businesses that commission work from creative artists (a group that in this case includes creators of computer programs, freelance writers, photographers and others, along with sculptors and painters), CCNV v. Reid could mean the difference of millions, maybe billions, of dollars. This case, one of the few art law cases to reach the Supreme Court in decades, could clarify the murky question of who owns a copyright -- the person who commissions the work of "intellectual property" or the artist who created the work. And with control of that copyright goes a sizable chunk of profits.

The passions of Snyder and Reid will not amount to much in terms of law when the justices reach their decision. But the legal maneuvering of CCNV v. Reid speaks not only about the relationship between artists and their employers, but also about good intentions and their aftermath, and about the desires and ideologies of two fierce fighters, one a nationally famous activist, the other a relatively unknown black sculptor who dreams of "international and world acclaim."

The fight started in 1985, when Snyder and CCNV commissioned a sculpture from Reid. The resulting work, nearly life-size, is of a mother and father huddling over a box in which they have placed their infant. The family sits on a steam grate, and below them appear the words "And still there is no room at the inn."

"Third World America," as it was called, was to be included in that year's Christmas Pageant of Peace on the Mall. Reid said he was sympathetic to the cause and donated his services, but CCNV paid $15,000 for the supplies and rent on his studio, as well as the wages of about a dozen assistants who helped during the two-month project. CCNV raised much of that money by auctioning off works that had been donated by artists, and Snyder said he promised those artists that the profits from the sales would pay for the costs of a statue, not benefit another artist financially. Neither Snyder nor Reid discussed copyright, but Reid did carve his copyright symbol into the statue and, eventually, filed for copyright, which would give him the right to profits from the statue and any reproductions.

Immediately after it was finished, the statue was the subject of its first lawsuit, after the National Park Service rejected it from the pageant because it did not "depict a symbol relating to how Americans have traditionally celebrated the Christmas season." Snyder lost his suit to get the statue included. But that case was, compared with what would follow, a mere introduction to the legal system.

The trouble between CCNV and Reid began when CCNV decided to send the statue on a national tour to call public attention to the homeless. Reid says he was worried that the statue, which was cast in a synthetic material, could not withstand the rigors of the trip and asked that CCNV pay for the statue to be recast in less fragile bronze. CCNV said it didn't have the money for the recasting, or for a master cast to be made so that reproductions would be possible in case the original was damaged.

Reid, who had the statue at the time to repair a broken foot, refused to return it, and began himself to plan a tour for "Third World America," albeit a shorter one than Snyder had envisioned.

After obtaining a court order to retrieve the statue, CCNV filed suit. In response, Reid claimed that his handshake agreement to create the sculpture included his right to retain the copyright, and thus to control reproductions, from calendars to postcards to posters to models. Not so, argued CCNV.

The suit took Snyder and Reid into the tangled "work-made-for-hire" debate, which has embroiled freelance workers and lawyers for a decade. In copyright law, a creator retains the copyright to his work. But under the work-for-hire doctrine of the 1976 Copyright Act, the copyright for certain types of work goes to the person who commissions the work. The doctrine holds that a "work-for-hire" relationship exists for nine types of collective work -- such as on a motion picture or an atlas -- as well as between employer and employee.

The problem with the doctrine is that "employer" and "employee" are not defined. In CCNV v. Reid, the lawyers are arguing over whether Jim Reid was an employee, who therefore did not possess the copyright, or an independent contractor, who therefore did.

"It's a question that has plagued the court for years: Who is an employee?" says CCNV lawyer Robert Garrett, who will argue the case Wednesday. In the U.S. District Court's decision on CCNV v. Reid, the definition of "employee" was based on an argument that a commissioning party that exerts artistic control over the creation of a work has copyright. Snyder claimed that CCNV had chosen the subject matter, the title, the pedestal and the writing on the pedestal. He said he was the one who decided the three figures should be black because most of Washington's homeless are black, and that CCNV supervised Reid's creation throughout the process. Reid merely "enfleshed" ideas articulated by CCNV, according to Snyder. Basing its conclusion on such evidence, the District Court found in favor of Snyder.

Reid takes umbrage at the notion that CCNV played an integral part in the creation of the piece. He insists Snyder's claim of involvement in the creation of the sculpture is equivalent to Snyder saying that "he can actually create my work! It's a chauvinistic point of view. It's white male chauvinism ... that he knows everything."

Reid appealed the District Court decision, and the U.S. Court of Appeals sent the case back, ordering the lower court to consider the possibility of a jointly held copyright between CCNV and Reid -- and possibly the assistants who helped Reid on the statue. But before the District Court acted, Snyder appealed to the Supreme Court.

Now Reid's lawyer, Joshua Kaufman, will argue before the Supreme Court that the control standard is not the correct definition of "employee" because several Circuit Court cases have defined "employee" in the more familiar sense: as a "regular salaried employee." Reid's sculpture, according to Kaufman, was therefore not work-for-hire and he should retain copyright.

Despite its daunting intricacies, the subject has galvanized the creative community. In many cases, agreements between artists and people commissioning them are not written down, and the "control standard" can be difficult for artists to battle: They want to see the protection of their copyrights extended, rather than the parameters of work-for-hire expanded.

La Grande Vision

Jim Reid is not a man given to understatement. His business, for example, is named La Grande Vision. In his relations with CCNV, he says, "I am under personal attack, and I understand how a woman might feel being raped -- there is a legal rape situation going on." And in a press release he had printed, he explores "the concept of creation," and compares God and the human artist.

"Would GOD lose HIS authorship of man," Reid writes, "despite his independent creative enterprise, through a dubious 'work for hire' clause in American copyright law?"

The fierce oratory aside, Reid is actually a rather gentle figure, almost teddy-bear-like in his worn flannel shirt, tired sweater and fuzzy beard. He seems, at times, vaguely distracted by the world around him, whether it be the jangling music piped into a restaurant or the pointed comments made by Bob Bedard, the savvy founder of the lobbying group ArtPac. Bedard heads up the James Earl Reid Defense Fund, which is raising money to pay for Reid's lawyers (Kaufman is doing his work pro bono, but earlier lawyers did not).

"What does he want of me?" Reid asks about Snyder. "To be one of his homeless impoverished people? I have a family, I can't just give up the struggle to support my family. I have my rights to be a productive person in society just like anyone else. I don't personally believe in the poor-starving-artist concept."

Reid is not starving, but although he has done commissions for the Washington Cathedral and the City of Baltimore, his art doesn't pay his bills. He describes himself as "a hustler," making ends meet as an architectural draftsman and a zoning consultant.

Bedard, a little uneasy with this point, interjects: "You'll never make as much on the statue as you've spent on this, will you?"

"Well ..." Reid begins, but Bedard cuts him off.

Bedard's evident discomfort with what he calls "the greed thing" is understandable in the context of some of Snyder's comments.

"What happened was, he believes the statue is worth a great deal of money," Snyder says about Reid. "I believe he's somewhat delusional about that. He's talking millions and millions ... I think he has gotten greedy -- I don't use that in a purely pejorative sense. He's struggled very hard, and he would like to have some recognition during his life, rather than after his death."

Such talk may not have any effect on the Supreme Court, but can be problematic if you're trying to raise money to help someone you tend to refer to as "a starving artist," as Bedard calls the 46-year-old Reid several times.

But Reid sees it this way: When Snyder says he's greedy, "he's dealing with the whole American dream, then, isn't he? What's wrong with being human?"

The array of charges that have accumulated over the years are hardly flattering, with each man suggesting the other has been transformed during the process. Reid paints a picture of a manipulative, power-obsessed Snyder. Once, Reid says, they met after Snyder had just begun a fast.

"In that meeting, Mitch Snyder basically changed characters," he says. Snyder used his fast "as a bullying tactic -- 'I shouldn't even be here, I should be at the doctor.' His voice intonation had changed. They didn't need me anymore. They'd got what they wanted."

To Reid, CCNV v. Reid has impugned his reputation by implying that he was, as he puts it, not an artist but "just a monkey sitting over there watching them."

The ammunition lobbed by both sides is strong, largely because the images involved -- the artist, the activist, the array of corporations -- are powerful. And the statue itself has become a symbol forced to bear many interpretations.

Reid has come to see "Third World America" as an emblem of artists' rights, of his personal pride, of his reputation. For other freelance creators, "Third World America" could be any piece of work created on commission. Snyder continues to see it as a symbol of the homeless movement, and he endows it with mystical powers. Ask him how the statue has helped already, and he says matter-of-factly, "It brought in $1 billion. Indirectly."

One billion?

Yes. In 1986, Snyder and others staged a sit-in on the steps of the Capitol in an attempt to get funding for the homeless through Congress, and the statue was there. Eventually, House Speaker Jim Wright promised there would be a bill, and Snyder attributes the existence of the $746 million McKinney Homeless Assistance Act largely to "Third World America."

"For us, the case is about the homeless, not control of property," he says. "Our community is philosophically opposed to ownership of property -- we rent our buildings. This whole process is alien to our ways of dealing with the material world."

But if Snyder insists on associating the homeless issue with the case, others resist the impulse, which they feel muddies the ethical waters.

"Anybody who looked at this case at the early stages was somewhat troubled by having to 'oppose the homeless,' " says Reid's lawyer Kaufman. "But a real look at this shows it's not about the homeless. When the amicus briefs were filed, and corporate America showed up, you saw what it was really about. I like to look at the amicus briefs and think, 'That's what we're opposing' -- then I don't have any trouble sleeping."

Day of Judgment

The Supreme Court will probably hand down a decision on CCNV v. Reid by late June. If CCNV wins, Snyder will retain copyright, as the District Court said he should. If he loses, the entire process will start again, with the District Court considering the case for a joint copyright.

On the national level, a win for Snyder would outrage independent creators of intellectual property.

"We're talking about classifying people as employees who don't get any employee benefits," says Charles Ossola, counsel to the Copyright Justice Coalition, which has 50 member organizations representing people "who rely on copyrights to make their livings."

"If Reid is an employee," says Ossola, "then that means that no creator will ever know ahead of time whether or not he or she will own the rights on his or her work, and they'll never really have an effective opportunity to avoid being classified as an employee."

A win for Reid, says CCNV lawyer Garrett, could throw thousands of business relationships into a state of chaos. If Reid is entitled to a copyright under his argument, contends Garrett, so are his dozen or so assistants.

The Information Industry Association, whose members range from publishers to database companies, filed on the side of Snyder. With a Reid victory, says Kenneth Allen, senior vice president for government relations, "what it's really going to do to our members is, they're going to think twice about hiring outsiders to help them produce a database or books or whatever, because it's just going to be a hassle for them."

Snyder says that if he is victorious, he thinks CCNV may allow Reid to make his own reproductions of the statue anyway. Not to do so, Snyder says, "would be vindictive."

But if that's his plan, why has he fought it so long? Simple, says Snyder. Reid "stole" the statue, and then attempted to turn it into something it was never intended to be: a profitable business venture for the sculptor. Although he has mixed feelings about the case, "I do know we have to support the agreement we made," says Snyder, no stranger to causes zealously pursued.

On both sides, there has been plenty of publicity. Snyder says he doesn't worry that his new-found corporate associates will hurt CCNV's reputation. "People know who we are," he says.

For Reid, the stories in national publications are more attention than he has ever gotten before, but he says it isn't what he was hoping for.

"What I am seeking, as an artist, is international and world acclaim for the quality and value and standards of the work I produce. I want to be a household name like Picasso, Michelangelo, Rodin -- all of the greats you can think of. That's my life's ambition, more or less, and I was looking for some respect in the artistic community for what I do, the level of consciousness I bring to my work."

On Wednesday, Jim Reid will walk into the Supreme Court and take a seat. He thought maybe he'd visit one time before then, just to get a feel for the place.

On Wednesday, Snyder and other members of CCNV will take the three figures of "Third World America" and set them up before the Supreme Court building. They will not be attending the oral arguments. Snyder refuses to rise before a judge, and he figures his lawyers don't need the added burden of dealing with that. Besides, he'd rather be outside with the statue.

"It's the place we should be," he says. "The case doesn't interest me. It's the statue, and its relationship to homeless people and its use in the cause."

But for now, the billion-dollar Nativity sits in a CCNV basement, disassembled, waiting for its day in court.

Articles appear as they were originally printed in The Washington Post and may not include subsequent corrections.