Chihuly's Glass Morass: Infringement My Ass

Sivacracy weighs in:

Dale Chihuly, the Shape of Sea Creatures, and the Scope of Copyright
Posted by Ann Bartow on June 1, 2006 03:46 AM

As this NYT article reports, glass artist Dale Chihuly:

"...has sued two glass blowers, including a longtime collaborator, for copyright infringement, accusing them of imitating his signature lopsided creations, and other designs inspired by the sea.

"About 99 percent of the ocean would be wide open," Mr. Chihuly said in an interview. "Look, all I'm trying to do is to prevent somebody from copying me directly."

"The glass blowers say that Mr. Chihuly is trying to control entire forms, shapes and colors and that his brand does not extend to ancient and evolving techniques derived from the natural world. ..."

The article suggests that the fact that Chihuly doesn't actually make his own art (he describes a vision, and "exhorts," apparently, but delegates the actual execution to others) will be important in the suit. It would certainly seem relevant to the morality of some of the claims at issue. For copyright law purposes, however, it is probably of little consequence. If the actual creators of the works are "employees," then the copyright statute unequivocally deems Chihuly the "author" of the works. The copyright infringement allegations, however, are highly contestable, and will turn on legal findings concerning the scope of copyright in Chihuly's works. Here's another excerpt from the NYT article linked above:

"This lawsuit is not about money," he said, puttering around the boathouse in paint-splattered shoes with a lawyer and publicity agent in tow. "It's about what is fair. There are a million forms you can make that don't look like mine."

Anytime someone says a lawsuit "is not about money" I tend to roll my eyes and make unattractive snorting sounds, but in this case I suspect the defendants don't actually have a lot of money, and it really is Chihuly's ego that is driving this litigation. [read on...]

via The Art Law Blog, Wednesday, May 31, 2006:

Chihuly In The Times (UPDATED)

The New York Times catches up with the Dale Chihuly copyright lawsuit we've been following closely, most recently here.

UPDATE:  Now that the lawsuit's made it to the front page of the Times, lots of commentary.

Professor Patry properly identifies "the essence of the dispute" as "the possible attempt by Mr. Chihuly to assert rights over techniques and style." He says it is "the scope of [Chihuly's] claims that are the most troubling."
[...]

Professor Ed Lee agrees "that there's a danger in allowing a broad assertion of copyright over a style of glass art, but without seeing the competing works, I'm not sure that's what this case involves. At least in the NYT, Chihuly says he only wants to stop the 'knock off' or verbatim copying of his work."

Professor Althouse first wonders why is this a copyright case and not a contracts case: "If Chihuly hired Rubino and kept him on for 14 years, why did he he never make Rubino sign a contract that would have limited Rubino from making similar shapes to sell on his own?" I must say I'm not aware of any artist requiring his studio assistants to sign something like that. And corporate law prof Gordon Smith suggests in the comments that such a contract might not be enforceable in any event [...]

As to the infringement claim, Althouse notes: "Artists are always copying each other's styles. It's disturbing to think that they should have to worry about being sued by the more successful artists who came before them. The old could prey on the young mercilessly, and the development of artistic styles would be crippled by litigious artists." She also makes the point, responding to a commenter who said "I had no idea that Chihuly didn't blow his own sculptures": "Right. Who did? He's publicizing the information himself by bringing the lawsuit. [emphasis ngrist's] [...]

Law prof Mike Madison addresses the co-authorship angle:  "Take a look at this exhibit: a fax from the plaintiff to the defendant that communicates some sketches — and adds, 'Here’s a little sketch but make whatever you want.' At the least, this sounds to me like the defendant has a plausible claim of joint authorship with respect to at least some of the plaintiff’s works." [...]

[...] patent lawyer Steve Barns has a nice bottom line summary: "Chihuly may have developed a distinctive style of blowing glass but the style is not copyrightable, only the specific expressions of that style (the individual pieces) are copyrightable. Copyright policy is not to protect an artist's 'signature style' but to reward the artist for creating individual works. Just as Picasso cannot sue all cubists, Chihuly shouldn't be able to prevent glass artists from making 'lopsided creations, and other designs inspired by the sea.'"