Copyrighting works of art

[n7bsn]

With some of the recent discussions on copying the style of famous turners, I thought the recent lawsuit filed by Chihuly (of blown glass fame) against several artists alleged to be copying his "designs" might be interesting. See this article in the Seattle Times

 

[Jeff Jilg]

Very interesting indeed. I read thru the article. It's always hard to read behind the lines, but it sounds like there might be some resentment or bad blood between Chihuly and the defendant (Rubino) who worked for Chihuly for about 12 years. It will be difficult for Chihuly to prove there is infringement since there have been a number of people who have studied under him. Do they all have signed paperwork from Chihuly allowing them some leeway in their designs?

From the article it stated that legal experts said that if someone's work is influenced by another's work that it is not infringement. True. But there might be a degree of influence that approaches copying. It would be interesting to see two pieces side by side and try to guess who made which one.

One thing is clear to me. I was recently in Chicago and attended the SOFA art show (20-30 thousand attendees). I saw some of Chihuly's glass work and a lot of other glass work. To me it was all very beautiful (and expensive). The Del Mano gallery was there too and it was fun to look through the artistry exhibited by their artists as well.

 

[Bill Boehme]

I know that a lot of artists, woodturners included, would like you to believe that they "own" a particular style. Any individual original work of art is automatically protected under copyright law which prevents someone from making knockoff copies, especially if they are alledged to be from the original artist. Claiming that a "style" element is unique and distinct from the work of art itself and constitutes a work of art itself is a really long shot. One of the "rule of thumb" tests is does something look similar enough to some previous work of art that it could be easily mistaken for the original.

Bill

 

[underdog]

I expect the ancient Greeks to rise up out of their graves and prosecute me when I start copying some of their classic forms then...

 

[Mark Mandell]

I expect the ancient Greeks to rise up out of their graves and prosecute me when I start copying some of their classic forms then...

Dog,

There's way more Chinese to do the job, and none of'em have to return from the dead to do it!

Does it occur to anyone else what great PR a well published suit actually is, or what an effective tool it could be to try to quash competitors? Would probably only work in a local market, of course, because a gallery owner a few thousand miles away might not care much about the possibility of getting sued by either guy. Of course, if it got picked up by the wire services . . .

M

PS: Nothing in this message should be read to imply that litigations to enforce clearly protected rights are brought in anything other than complete good faith. However, I always advise my clients that news releases and case publicity is a 2-edged sword. "Spreading the word" but then getting beat will not do well for the bottom line, and may in fact, help the other guy!

 

[Jeff Jilg]

I think you have some good points Mark. I just wonder why Chihuly did this suit to start with. He doesn't really need the money at this point. I would take a WAG and figure he is worth more than $5million. But maybe he wants a whole bunch more money.

Plus what would he hope to protect at this point. People buy his work because it has his name on it. Everyone knows who he is. And the work which he designs (and has other people build) is nice to look at. Seems to me that Chihuly is making bad karma with this. Why would a new artist want to study under him....only to be potentially sued in the future. He may end up undercutting his business model and end up with inferior pieces in the middle if the net result of the activity is to chase away talented helpers - who actually make the pieces.

 

[Ron Sardo]

You have a good point there Mark.

The article does say "Fans and critics alike, however, agree on one thing: He knows how to sell himself."

 

[Mark Mandell]

You have a good point there Mark.

The article does say "Fans and critics alike, however, agree on one thing: He knows how to sell himself."

Good get, Ron.

The tendency here is to get more than a bit cynical, and after 25 years in the hardball business I'm certainly not immune. Original Master may well feel genuinely ripped off.

What I thought was most interesting is that the guy is trying to enforce exclusive rights to an entire "style." Although the article mentions "knockoffs," such things are usually done as out-and-out counterfited copies, which would involve "theft" of a distinctive component like the clasp or fabric pattern on a Gucci purse, or a BS name like "Bolex" if not trying to produce exact copies of the entire piece. A copying glass blower who regards himself as an artist might get kind of bored (or short winded) doing the same exact piece over and over and over and . . . . . . . . .

Since the objects of the plaintiff's affection are another artist and the guy's former student who are signing their own names to apparently similar but not exact copies, let's face it, even if they included a tag paying homage to the almighty master's style, it wouldn't solve the issue once the tag got separated because the retail purchaser will have pitched it along with the box. Is he not asking the court to cut off artistic expression and development which, while starting with similar pieces, may well branch into new realms not dreamed of by O Original One?

Moreover, since Honorable Master has established his rep and commercial presence, his smart move might be to treat his present opponents efforts as free advertising, and then put out the message that "If you want a REAL [humblefrumblegid] rather than one of the cheap-*** knockoffs these other Dudes are trying to peddle to you, my phone number is . . . . . ." Pretty heavy snob appeal and justification for price differentials in that one.

M

 

[Mark Mandell]

I think you have some good points Mark. I just wonder why Chihuly did this suit to start with. He doesn't really need the money at this point. I would take a WAG and figure he is worth more than $5million. But maybe he wants a whole bunch more money.

Plus what would he hope to protect at this point. People buy his work because it has his name on it. Everyone knows who he is. And the work which he designs (and has other people build) is nice to look at. Seems to me that Chihuly is making bad karma with this. Why would a new artist want to study under him....only to be potentially sued in the future. He may end up undercutting his business model and end up with inferior pieces in the middle if the net result of the activity is to chase away talented helpers - who actually make the pieces.

Jeff,

Time was that master artists were known and reputed not just by their own work, but by the "school," his/her sphere of influence, they formed around themselves. I think you're very perceptive in that the suit seems to be ultimately counterproductive.

Brings up an image of a successful litigant [Chihuly] sitting in the middle of his factory/studio, in one hand holding a judgment he can't collect, in the other a whopping bill from his attorney, all surrounded by forms and raw materials, but without a workman in sight because they've all been scared he'll go after them next. Talk about pulling the trigger before the gun's left the holster . . .

M

 

[-e-]

my first impression on the legal action was that Chihuly was making a statement: how dare one of my students betray me ... i'm going to tell the world about this. however, it an interesting issue ... creativity.

a local University successfully sued a startup bio tech company for patent rights to Hepatitis C vaccine. The Post-Doc cloned the virus while at the University. He then left and started the bio tech company with seed-money from selling the clone. He and his company then developed the vaccine. And then the University sued claiming that they owned the intellectual property to the clone because it was initially developed at their institution. The courts agreed.

it became common practice to require employees to sign an agreement that anything they created while in Company X's employment belonged to the company, and would for 10 years after the employee left the company.

so ... if I'm an assistant to an artist, learning their techniques and styles, and then leave and start generating similar product, wouldn't this be the comparable to taking intellectual property ...

it should be an interesting case ... especially because there is no cloned virus.

 

[Bill Boehme]

... wouldn't this be the comparable to taking intellectual property ...

No, this is apples and oranges. When you are talking about intellectual property, it is a part of the design and development process that may eventually lead to a patent. It is usually part of the documentation required in obtaining a patent and certainly part of the documentation required in defending a patent against challenges that may claim preeminence. There are plenty of differences between patents and copyrights. Inventions can't be copyrighted and works of art can't be patented. A copyright covers a single end product of artistic creativity and specifically does not cover the creative process.

Bill

 

[MichaelMouse]

Write songs, not prescriptions. Then you have life plus 75 - something to will the kids.

Patent's only good for what - 20 years? If it's some breakthrough medication, of course, the WHO will call for it to be manufactured immediately without license everywhere to make things fair.

 

[Bill Boehme]

Michael,

It is 17 years for patents -- who knows where that particular number came from (I'm sure that somebody knows). Copyrights are for more than life -- they go on supposedly forever, although I am sure that they will get lost in antiquity except for well-known works of art. The cave artist who did the stick pictures of hunters and animals was probably the Picasso of his day.

Bill

 

[Anthony Yakonick]

I've seen Chihuly on a few PBS shows, to me it seems like he "guides" his workers and has rarely touched any glass since he lost sight in one eye. So who's work is it?

 

[Mark Mandell]

No Mistake

I've seen Chihuly on a few PBS shows, to me it seems like he "guides" his workers and has rarely touched any glass since he lost sight in one eye. So who's work is it?

It's HIS. Mechanical touching is not required because the art's in his head, not his hands

 

[n7bsn]

Patents, Copyrights, etal

Michael,

It is 17 years for patents -- who knows where that particular number came from (I'm sure that somebody knows). Copyrights are for more than life -- they go on supposedly forever, although I am sure that they will get lost in antiquity except for well-known works of art. The cave artist who did the stick pictures of hunters and animals was probably the Picasso of his day.

Bill

Bill, the dates came from the Founding Fathers... they saw what happened in Europe when people were granted the "rights" to ideas for ever, and what happened when people weren't granted those rights, at all.
Their concept was that the person, coming up with the idea, would get the income from it for a fixed time, then the rights would revert to the public.
Much later, the people that hold Copyrights (eg Disney, who was about to lose the rights to Mickey Mouse) got Congress to
seriously extend Copyrights, beyond the period that Patents receive.
Which is why software firms now go for Copyright in addition to Patents

 

[n7bsn]

Very interesting indeed. I read thru the article. It's always hard to read behind the lines, but it sounds like there might be some resentment or bad blood between Chihuly and the defendant (Rubino) who worked for Chihuly for about 12 years. It will be difficult for Chihuly to prove there is infringement since there have been a number of people who have studied under him. Do they all have signed paperwork from Chihuly allowing them some leeway in their designs?

Considering Chihuly, it's certainly likely, he is very pro-active in his willingness to seek legal action.

From the article it stated that legal experts said that if someone's work is influenced by another's work that it is not infringement. True. But there might be a degree of influence that approaches copying. It would be interesting to see two pieces side by side and try to guess who made which one.

Especially if you consider the Chihuly didn't "invent" his style, but learned it in Europe.

One thing is clear to me. I was recently in Chicago and attended the SOFA art show (20-30 thousand attendees). I saw some of Chihuly's glass work and a lot of other glass work. To me it was all very beautiful (and expensive)....

Years (and years) ago, before Chihuly had a "name", we saw his work and the wife loved it. Then is was merely expensive, as opposed to today's, un-affordable.

Gallery's tend to watch Chihuly rather closely. It appears his firm is quite willing ace them out of commissioned work. I have read several accounts of a Gallery making contact with a client seeking a special piece from his shop, only later to learn that Chihuly had sold it directly to the client, and not paid the Gallery any fees.

 

[Bill Boehme]

It's HIS. Mechanical touching is not required because the art's in his head, not his hands

Mark, you are right that it is HIS, but for more than the reason that you cite. He can't copyright an idea or concept that is in his head, BUT he can have his employees sign an agreement that gives him ownership as the creator and he can sign the work because he told the employee what to do, how to do it, and what color . . . . supposedly.

Bill

 

[Mark Mandell]

Mark, you are right that it is HIS, but for more than the reason that you cite. He can't copyright an idea or concept that is in his head, BUT he can have his employees sign an agreement that gives him ownership as the creator and he can sign the work because he told the employee what to do, how to do it, and what color . . . . supposedly.

Bill

Bill,

You mean I can't, after all, go to jail just for what I'm thinkin?

While he can demand his employees sign such "agreements", many courts give them only very limited enforcement, especially in the context where a skilled craftsman is hired because of his skills. They're also not going to tell some schnook that he can't work with red glass just because he worked for Chihuly who used red glass (or any other color.)

M

 

[Bill Boehme]

You mean I can't, after all, go to jail just for what I'm thinkin?

And, it is a good thing, or we might all be in jail together . Fortunately, civil cases don't involve jail time -- at least not directly.

Bill

 

[Mark Wollschlager]

Last summer in the Sea-Tac airport there was a glass display in a prime location. At first ( and second ) glance, Chihuly. I didn't see a title at first and looked. I was someone else's work. The family tree was strongly evident, and I remember thinking that someone might be in for trouble. I'll bet it was the same folks who are being sued.

I really blew my chance to get a Chihuly piece in the early 80's. I was in a glass gallery that was having a show of his smaller pieces, affordable too.
My comment to the gallery owner was that the artist must have strange dreams. It was some weird stuff. I guess I my tastes have changed.

mark.