The suit, rare in art circles, offers a sometimes unflattering glimpse at how high-powered commercial artists like Mr. Chihuly work. The two glass blowers say that he has very little to do with much of the art, and that he sometimes buys objects and puts the Chihuly name on them, a contention that Mr. Chihuly strongly denies.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?
He acknowledges that he has not blown glass for 27 years, dating from a surfing accident that cost him the full range of shoulder motion, an injury that struck three years after he had lost sight in his left eye in a traffic accident.
Still, Mr. Chihuly said, he works with sketches, faxes and through exhortation. Nothing with his name on it ever came from anyone but himself, he said....
...Mr. Chihuly called Mr. Rubino a "gaffer," a term for a glassblower who labors around a furnace at the instruction of an artist. Asked to assess Mr. Rubino, Mr. Chihuly said, "He was an excellent craftsman" with little vision of his own.
"You think I would ever let Rubino decide what something looks like?" Mr. Chihuly asked.
Bonus photo: a closeup of the big Chihuly sculpture at the Milwaukee Art Museum, taken last Saturday:
There is a signature look to the work. It's impossible for me to tell from the linked article how close to Chihuly's Rubino's designs are. This article gives some more context:
Chihuly sued Rubino and Redmond art entrepreneur Robert Kaindl in October, accusing them of copying his designs and selling "knockoffs" at several local galleries. Last week, Chihuly alleged in court documents that the two had pored over books of Chihuly's works and picked out designs that Rubino would make for Kaindl to sell....So what do you think, copyright experts? I'm guessing that it's rather obvious that the "work for hire" Rubino did for Chihuly makes him not a co-author and that this claim is a bargaining chip in the litigation process. Rubino just wants to be able to sell his own work now, even though it's similar to the work he did with Chihuly. Should he win on that claim? 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.
...Rubino says he created or co-authored some of the works that Chihuly is suing to protect, and that some of the work he did for the artist was done "without any creative input whatsoever from (Chihuly Inc.) or Dale Chihuly."
As evidence, Rubino submitted a fax he says he received from Chihuly. The fax includes sticklike drawings and the following instructions: "Here's a little sketch but make whatever you want. We'll get everything up to Tacoma when you're done and I'll try to come down while you're blowing. Till then, Chihuly."...
Rubino is asking the court to declare him a co-author of some of Chihuly's more famous pieces, and award him profits associated with those works.
Chihuly acknowledged in his suit that "Rubino worked on virtually every series created by Chihuly." But he claimed that Rubino signed away any rights to the work when he was Chihuly's employee, and that as a contractor, all of the work Rubino made for Chihuly was done under Chihuly's direction and control.
Chihuly's designs are way too distinctive to make me buy Rubino's argument that they are nothing more than nature's design. Chihuly may like to say that he's inspired by the sea, but these swirls and curlicues don't look much like any sea I've ever gazed upon. But perhaps his designs come quite directly from the inherent limitations of glassblowing, the traditional techniques of the craft, and the decision to work very large. If so, Chihuly is trying to monopolize the field of art glass.
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38 comments:
I had no idea that Chihuly didn't blow his own sculptures. Fascinating.
I checked out Rubino's work at rubinoglass.com and I don't see the similarity. Maybe he's removed pieces that were more similar.
Dave: I've looked at the sculpture at the Milwaukee Art Museum many times, and I never thought of the see. I saw glass in decorative curly shapes. If I thought of anything, it would be a monster from outer space.
Jennifer: "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. Plus, he's bullying another artist. Even if his claim is sound, it might not have been wise to sue.
The sea (not the see).
I see many problems for Chihuly. In my experience, a "work made for hire" agreement is one of the easiest agreements to find void ab initio. For an independent contractor there are lots of requirements and exceptions in the statute.
Even if Chihuly prevails and shows that Rubino was bound by a work made for hire agreement, he still may not be able to prove copyright infringement. 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."
You can see examples of Rubino's work at
http://www.rubinoglass.com/
You can find more information here: http://www.nytimes.com/2006/06/01/us/01glass.html?_r=1&hp&ex=1149134400&en=d7158bc9e9667ce3&ei=5094&partner=homepage&oref=slogin
The article calls the sculptures multidimensional. Feh. Isn't all glass sculpture just 3-D?
Whenever I see the Chihuly display at the Kohl Center on campus, I'm reminded of hair clogs in sinks. Never once thought of the ocean.
Jennifer: "I had no idea that Chihuly didn't blow his own sculptures." Right. Who did?
To be fair, he's always been upfront about that and any story I've seen about him mentions it. If someone only recognizes the name Chihuly as that "glass guy" they might have missed this fact, but it's never been hidden information. I've always known about him missing an eye, but didn't know about the surfing accident.
Having said that, I just took a look at his website bio and while it emphasizes his "notion of collaborative teams" it doesn't specify why this was necessary. His bio links to two other bios, only one of which mentions his injuries.
Maybe he's not upfront as I seem to think, just that--for whatever reason--as long as I've known the name Chihuly I've known most of his work as been directed.
Madison connection: "entered the graduate program in glassblowing at the University of Wisconsin in Madison."
Ann and Jennifer,
The fact that Chihuly did not blow his own glass was know. Chihuly sells videos of his work being created. The videos show him bustling around and pointing while the gaffers are doing intense manual labor.
The glass blowing process, especially on the scale of some of Chihuly's works, is incredibly labor intensive. The videos show two or three guys suporting the weight of the glass while it is being worked.
Sippican - LOL!
Seriously, why not just add a little sticker with "d'apres Chihuly" and solve the whole problem? There are plenty of artists who live by making cheap, decent reproductions of classics. Have these people never seen "Antiques Road Show"?
Asked to assess Mr. Rubino, Mr. Chihuly said, "He was an excellent craftsman" with little vision of his own.
Anyone else think that's slightly ironic coming from someone with only one working eye?
Oh, Chihuly's an alum? Would I have slanted my post differently had I noticed that??
About the lawsuit publicizing that he doesn't do his own work, but merely directs others. I'm not suggesting that was a secret, only that it was something people weren't thinking about or focusing on. Rubino is now motivated to emphasize how important his own role was, how it involved design, etc. This is hurtful to Chihuly's reputation, even if he wins. I'm just saying that you have to think through everything before suing. You may feel aggrieved, but you have to picture what the opponent will throw back at you. Someone who never would have sued you will now come up with defenses and counterclaims, and there will be articles like this one on the front page of the NYT.
Chihuly got an MFA in '67
Oh, Chihuly's an alum? Would I have slanted my post differently had I noticed that??
I doubt it. And it was almost 40 years ago.
About the lawsuit publicizing that he doesn't do his own work, but merely directs others. I'm not suggesting that was a secret, only that it was something people weren't thinking about or focusing on.
Still, I think the conversation was about to get sidetracked about how this was a deep, dark secret. It wasn't, back to the lawsuit.
Rubino is now motivated to emphasize how important his own role was, how it involved design, etc. This is hurtful to Chihuly's reputation, even if he wins.
Definately agree. I think it will cause people to wonder how much involvement Chihuly had and to question what they pay for a Chihuly. It isn't hard to find work as well done as Chihuly and selling for maybe a quarter of the price. His name is worth a lot and I think his prices will be affected.
I suspect, depending on the project or individual piece, Chihuly's actual involvement would differ. For a 14-year employee like Rubino, Chihuly probably felt he could send a vague sketch and be confident that Rubino was fully inculcated in the Chihuly system to create a "Chihuly." Where credit belongs will be an interesting decision.
Didn't many of the great masters operate in a similar way with their students?
In a less artistic example, Thomas Kinkade is someone who probably has all the copyright issues covered:
Kinkade's divine yet technical inspiration was the perfection of a process by which an original oil painting — he creates a dozen new images a year — is digitally photographed, transferred onto a plastic-like surface and glued onto canvas. Each print visits "highlight artists," mostly Hispanic and Asian hourly workers. In a paint-by-number style, they add a dot of red to a tree here, a dash of white to an interior light there.
...There are nine versions of each reproduced image, from Standard Numbered editions, for a few hundred dollars, to Studio Proofs that feature a textured canvas, more highlighting and Kinkade's machine-etched signature — compete with his DNA, courtesy of mixing the ink with the painter's hair and blood.
A wise insight by Seth Godin.
Actually, all your lawyers are in your marketing department.
http://sethgodin.typepad.com/seths_blog/2006/04/the_lawyer_in_t.html
You might want to check out Satava v. Lowry, in which one artist who made glass jellyfish sued another unsuccessfully for copyright infringement because, in short, the natural forms from which the sculptures were derived were not copyrightable. You can see a bit about the case, along with appropriate links, at: http://lawwww.cwru.edu/faculty/friedman/raw/index.asp?rssId=361
That link should have been
http://law.case.edu/faculty/friedman/raw/index.asp
As you will see from the photo posted on that site, at least some of Chihuly's sculptures don't seem quite so removed from earthly reality as some of the commenters have mentioned.
Thanks, Gordon. I was looking negatively on Chihuly's copyright claim because of what I perceived as a failure to protect his interests by contract. But if, in fact, courts are very hard on such contracts, it may not be worth doing. Should I look favorably on Chihuly for not trying to constrain Rubino? It may be that he was cool with Rubino going about his glass-blowing business, but Rubino went over the line and took advantage of Chihuly's reputation. In that theory, the failure to make a contract helps Chihuly's side.
Thanks, Gordon. I was looking negatively on Chihuly's copyright claim because of what I perceived as a failure to protect his interests by contract. But if, in fact, courts are very hard on such contracts, it may not be worth doing. Should I look favorably on Chihuly for not trying to constrain Rubino? It may be that he was cool with Rubino going about his glass-blowing business, but Rubino went over the line and took advantage of Chihuly's reputation. In that theory, the failure to make a contract helps Chihuly's side.
Peter: The jellyfish case is discussed in the first linked article. I think it accounts for Rubino's "sea argument," which sounds rather foolish on its face. Basically, the sea inspiration with respect to Chihuly is a lot more removed from the final work of art.
There's such a thing as a graduate program in glassblowing? That's kind of cool.
Yeah, to quote from the case (found at the link Peter gave): "Because the quantum of originality Satava added in combining these standard and stereotyped elements must be considered 'trivial' under our case law, Satava cannot prevent other artists from combining them."
The difference between the sea and Chihuly's sculpture is scarcely trivial!
If you've ever been in the lobby of the Bellagio Resort & Casino in Las Vegas, you've seen some "Chihuly" work. It's all along the ceiling there.
Others have oohed and ahhed it, but while pretty, it didn't impress me as something the artist deliberately aimed for - too abstract for that. There wasn't anything you could point at and say, "if that had been a little different, it wouldn't have looked good."
Ann,
I'm not so sure Chihuly's sea inspiration is as far removed from nature as you might think. There's the orchid sculpture by Chihuly I put a photo of on my site that looks pretty real to me. As to his "sea-forms"--here's a sea anemone:http://www.cyhaus.com/marine/corals/anemone2.jpg
As someone who grew up watching every program by Jacques Cousteau, I can easily see the sea in these glassworks.
From a common sense perspective, I don't really see how Chihuly has a leg to stand on in this case, but I'm completely unqualified to comment on the legal aspects.
I am reminded of Harold Bloom's theory of the "anxiety of influence," under which modern poets (beginning with Milton) labor, those "tensions and anxieties, hostilities and inadequacies writers feel when they confront not only the achievements of their predecessors but the traditions of genre, style, and metaphor that they inherit from such ‘forefathers.'" How, in a tradition based on a shared tradition of sources, all those historical, biblical, and mythological images, become an individual, creative work that continues the line of literary tradition? Is Rubino a failed Chihuly, or does Rubino extend the life of Chihuly through a new line of tradition? Law suits sure throw a curve into the whole literary theory process.
There was a short note in the new Reason about the lack of copyright and the fashion industry, and how quickly knockoffs of designer work gets into the mass market. They argue that this spurs innovation, since part of the value isn't just the intrinsic aesthetic value of the work - it's being the new new thing from a famous designer. IANAL, but doesn't something similar apply here?
Think back to the Project Runway blogging. Some of the designs were downgraded for being imitative, but no one talked about that being a legal problem.
It seems to me that as long as Rubino isn't passing his work off as Chihuly's he would be legally in the clear in my ideal world (again, IANAL).
Chihuly isn't just inspired by the sea, anyway. As it happens, last month I went to a wedding in St. Louis and blogged a bunch of his work that's in the Missouri Botanical Garden. Pics here and here and gallery here (mostly but not entirely Chihuly).
From a synopsis of Donald Cuspit’s “Chihuly” (http://www.campusi.com/isbn_0810963736.htm):
“Chihuly's oeuvre is notable for its vibrancy of color, the boldness of its shape and execution, and, in recent years, its studied mimicry of natural forms, from cacti to seaweed and jellyfish.”
And then there’s this site from the Monterey Bay Aquarium (http://www.digitizethis.com/travelogue/monterey_aquarium/index.html), a pictorial travelogue of the sea that includes one Chihuly piece (http://www.digitizethis.com/travelogue/monterey_aquarium/images/aqua_chihuly_lg.jpg) that to my eye (as, no doubt the site’s authors intended) is virtually indistinguishable from undersea life forms.
Chihuly's stuff sure looks a lot like (sea) anemones and the like to me, so "inspired by the sea" sounds perfectly justifiable.
Of course, I also think it's ghastly, but that's purely a matter of taste.
1. My workplace has 3 Chihuly pieces in the lobby, a montrous grouping. They appear to be giant viruses, ready to cause one to cough violently or ache all over. So each day I hustle past it, lest I become febrile or develop open sores. I want to create an installation across from it, a large friendly White Blood Cell, just for balance. On other days, Chihuly's piece seems not some fierce contagion, but a biopsy bound to be followed by the words, "I'm afraid I have some very bad news."
2. The Chihuly mass production method makes me think it's the Franklin Mint Collection for the very rich. Like junk jewlry or a Thomas Kincaid for the alpha businesses and fashionistas, their sheer expense far outweighs their value. But to own one is a signal of prestige, it appears. Is it art? I'd like Mr. Wolfe's opinion.
3. So Rubino doing knock-offs of his own prior work will likely be decided against him, largely for reasons I'll never comprehend. Maybe he'd fare better if he called it an homage.
Chihuly says he gave a "little sketch" to Rubino and Ribino did the rest. How much of the final work depended on the "little sketch" and how much depended on Rubino's creativity and technical skill? Is Chihuly or Rubino the artist who created the work?
If I were Chihuly, I would be worried about lawsuits brought by angry art lovers who thought they were buying a work created by Chihuly.
The first time I saw one of Chihuly's works was on a tour of the Mayo Clinic. The people showing me around made a big deal about it, but I could only think that this fellow Chihuly's name reminded me of Jeff Gillooly, Tanya Harding's former boyfriend who whacked Nancy Kerrigan on the knee, and when I looked at the odd glass sculpture on the ceiling, I thought it looked rather like what a Frank Stella work might look like if glass were Frank Stella's medium. I wasn't too impressed, but it did make me wonder what had ever become of Jeff and Tanya (not that I really cared).
Sippican,
Your point, though a historical and not a legal one, has legal significance. The collaborative nature of the production of art in the Renaissance predates copyright protection. In fact, there's plenty of scholarship showing that it is precisely rise of the Romantic notion of the solitary, divinely-inspired creator in the 18th Century that provided the impetus to enact the copyright laws. See, e.g. http://home.case.edu/~ijd3/authorship/
It is precisely the tension between the collaborative nature of all creation and copyright law's incarnation of the Romantic ideal of the lone creator that has everybody's dander up these days and makes this article front page news in the New York Times.
After watching some of the video on Chihuly's site, I side with Rubino.
Partly because a lot of Chihuly's direction seems to be: "I don't know what I want it to look like, just make it look good!" and partly because he is pretty annoying.
"...partly because he is pretty annoying."
LOL. A good way to resolve lawsuits. I'm sure it affects juries. When I was a law clerk, we had a big trial about the book/movie "Altered States," which a man who worked with Paddy Chayevsky claimed to be a co-author of. Unfortunately, Chayevsky had already died by the time we went to trial, so we didn't get the showdown of annoyingness it could have been. (How did it come out? Halfway through, the widow decided to settle, even though her husband died refusing ever to settle.)
How come I havent heard of the Italian Lino Tagliapietra (who was even praised by Chihuly) suing others for copying his Venetian goblets? Just a thought.
Then somebody else quips, "Ever heard of how 'easy' it is to bake tissue-thin glass?"
Quip 2: "You dont speak Italian, do you?"
But, seriously now...
More glass art here.
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