Home » Copyright/Intellectual Property » Chihuly and his Art: Who is the True Creator?

Chihuly and his Art: Who is the True Creator?

10 July 2018

From Hugh Stephens Blog:

I am not sure how I managed to go through my entire life without being aware of Dale Chihuly and his work, at least until recently, but somehow I managed it.

. . . .

His work is exhibited in over 250 museums world-wide, and he heads a factory-like production team, being unable—owing to injuries—to blow glass himself. As his publicity material makes clear, “He transitioned to directing a team of artists in his studio, and has commented, ‘Once I stepped back, I liked the view’.” Like the students of Raphael and Rubens, acolytes would be honoured to work with the master. Or would they?

Well, not all it seems. As reported by the New York Times, Mr. Chihuly is being sued by a former associate, Michael Moi who, according to Chihuly, was hired as a contract handyman. According to Moi, his duties went well beyond being a handyman, and involved participating in the creation of many of Chihuly’s works. As noted above, Chihuly has never claimed that he personally produces every aspect of his work, any more than Andy Warhol produced everything that came out of The Factory, as he called his studio. Moi wants recognition as a co-author, in effect accusing Chihuly of violating his copyright.

Normally under US copyright law someone working as an artist’s assistant would not have a claim to copyright as that person would be producing a “work for hire”. There are a number of tests required to meet the definition of a work for hire, but among them is an employer-employee relationship as well as the author/artist retaining final authority over the work. That is probably why in his lawsuit Moi claims that for 15 years he “worked for” Chihuly without being an employee or having an employment contract. Rather he states he was promised future compensation.

. . . .

Moreover, according to the NYT report, sometimes Mr. Chihuly’s only role was “adding dots, drip and lines and, finally, his signature.” Surely that is a key point. Adding that signature made it a Chihuly work. Without the signature it was just another piece of colourful glass. He would not have put his name to substandard work, or work that he would not have been proud to be identified with.

There is such a thing as joint copyright (for example a paper authored by more than one researcher) and there is provision for co-ownership of copyright, but as David Newhoff has pointed out in his blog (when discussing ownership of copyright by a developer of an AI program), “there must be an initial intent to create a jointly made work in order for all collaborators to claim ownership.” This certainly appears not to be the case in the Chihuly affair—but as I said, the courts will decide.

This does raise the interesting question, however, as to how much control an artist has to have over his or her work to claim authorship.

. . . .

Whether it is Raphael’s Cartoons, created by him and his assistants, or the works of Dale Chihuly, Andy Warhol or Ai Weiwei, the element of creation is in the inspiration, design, choice of colour, and so on including what we would call today “quality control”. There are many talented journeymen painters and artists, but the “secret sauce” of originality and creativity is what separates the creative genius from the practitioner.

Link to the rest at Hugh Stephens Blog

Here is a link to an article with photos about Chihuly’s studio, The Boathouse.

PG suggests that a simple (less than one page) employment contract is a good idea when an artist or author hires someone to provide assistance in the creation of works that may be subject to copyright (and that includes a very wide range of creative works).

Here is what the U.S. Copyright Office says about what copyright protects in its FAQ’s:

What does copyright protect?
Copyright, a form of intellectual property law, protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture. Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed. See Circular 1, Copyright Basics, section “What Works Are Protected.”

Can I copyright my website?
The original authorship appearing on a website may be protected by copyright. This includes writings, artwork, photographs, and other forms of authorship protected by copyright. Procedures for registering the contents of a website may be found in Circular 66Copyright Registration of Websites and Website Content.

Can I copyright my domain name?
Copyright law does not protect domain names. The Internet Corporation for Assigned Names and Numbers (ICANN), a nonprofit organization that has assumed the responsibility for domain name system management, administers the assigning of domain names through accredited registers.

How do I protect my recipe?
A mere listing of ingredients is not protected under copyright law. However, where a recipe or formula is accompanied by substantial literary expression in the form of an explanation or directions, or when there is a collection of recipes as in a cookbook, there may be a basis for copyright protection. Note that if you have secret ingredients to a recipe that you do not wish to be revealed, you should not submit your recipe for registration, because applications and deposit copies are public records. See FL 122Recipes.

Can I copyright the name of my band?
No. Names are not protected by copyright law. Some names may be protected under trademark law. Contact the U.S. Patent & Trademark Office, TrademarkAssistanceCenter@uspto.gov or see Circular 34 “Copyright Protection Not Available for Names, Titles, or Short Phrases“.

How do I copyright a name, title, slogan, or logo?
Copyright does not protect names, titles, slogans, or short phrases. In some cases, these things may be protected as trademarks. Contact the U.S. Patent & Trademark Office, TrademarkAssistanceCenter@uspto.gov or see Circular 33, for further information. However, copyright protection may be available for logo artwork that contains sufficient authorship. In some circumstances, an artistic logo may also be protected as a trademark.

How do I protect my idea?
Copyright does not protect ideas, concepts, systems, or methods of doing something. You may express your ideas in writing or drawings and claim copyright in your description, but be aware that copyright will not protect the idea itself as revealed in your written or artistic work.

Does my work have to be published to be protected?
Publication is not necessary for copyright protection.

Can I register a diary I found in my grandmother’s attic?
You can register copyright in the diary within a certain duration only if you own the rights to the work, for example, by will or by inheritance. Copyright is the right of the author of the work or the author’s heirs or assignees, not of the one who only owns or possesses the physical work itself. See Circular 1, Copyright Basics, section “Who Can Claim Copyright.”

How do I protect my sighting of Elvis?
Copyright law does not protect sightings. However, copyright law will protect your photo (or other depiction) of your sighting of Elvis. File your claim to copyright online by means of the electronic Copyright Office (eCO). Pay the fee online and attach a copy of your photo. For more information on registering a copyright, see SL-35. No one can lawfully use your photo of your sighting, although someone else may file his own photo of his sighting. Copyright law protects the original photograph, not the subject of the photograph.

Does copyright protect architecture?
Yes. Architectural works became subject to copyright protection on December 1, 1990. The copyright law defines “architectural work” as “the design of a building embodied in any tangible medium of expression, including a building, architectural plans, or drawings.” Copyright protection extends to any architectural work created on or after December 1, 1990. Also, any architectural works that were unconstructed and embodied in unpublished plans or drawings on that date and were constructed by December 31, 2002, are eligible for protection. Architectural designs embodied in buildings constructed prior to December 1, 1990, are not eligible for copyright protection. See Circular 41Copyright Claims in Architectural Works

Can I get a star named after me and claim copyright to it?
No. There is a lot of misunderstanding about this. Names are not protected by copyright. Publishers of works such as a star registry may register a claim to copyright in the text of the volume [or book] containing the names the registry has assigned to stars, and perhaps the compilation of data; but such a registration would not extend protection to any of the individual star names appearing therein. Copyright registration of such a volume of star names does not confer any official or governmental status on any of the star names included in the volume. For further information on copyright protection and names, see Circular 33Works Not Protected by Copyright 

Here is a link to a U.S. Copyright Office circular on Works Made for Hire.

Copyright/Intellectual Property

3 Comments to “Chihuly and his Art: Who is the True Creator?”

  1. I have his video:

    Chihuly River of Glass

    This is a sample of what he does.

    Dale Chihuly’s Chandeliers and Towers
    https://www.youtube.com/watch?v=OndIFim3w0I

    IMHO, If Michael Moi wants to make money on the art he creates, then he should go about creating it under his own name. If he is that good, he will make money. But then, who will he find to work for him.

    This is a documentary and interview that shows a similar assistant to an artist with a different outcome.

    Filmworker – Official Trailer
    https://www.youtube.com/watch?v=PEZ2r1YGKSA

    DP/30: Leon Vitali on Kubrick
    https://www.youtube.com/watch?v=BhXLE4xUy7w

    Then this is what you can do when you go totally DIY.

    Rivers and Tides: Andy Goldsworthy Working with Time – Trailer
    https://www.youtube.com/watch?v=AT3lveJmjY8

    The examples and comments above are just an observation. All of them lend themselves to a huge number of stories.

    Context is everything.

  2. So, he’s the Patterson of blown-glass art?

    Quote: Moreover, according to the NYT report, sometimes Mr. Chihuly’s only role was “adding dots, drip and lines and, finally, his signature.”

    That doesn’t sound like he created it. More like he “finished” it.

    His art can be seen in a lovely setting down here (Miami area) at the Fairchild Tropical Botanic Gardens. https://youtu.be/JqltbOetfmc

  3. Regarding work for hire, I’m curious how this would relate to authors hiring cover artists to create original art (like digital paintings or custom photos). What is required for the author in such an instance to retain full copyright of the material, meaning that the finished work could never be forcibly reverted back to the artist?

    (DWS had a blog post about reversion of what sounded like work for hire writing recently, and he talked about how writers can get their ownership of these books back after 35 years. Or maybe I was misunderstanding it and he was talking only about works where the copyright originated with the author and was sold entirely, rather than a work for hire situation. I’m not sure what the difference between those two things would be, or if there is one.)

    I guess I’m wondering what it would take for an author who wants to really own their cover art to do so. Just make sure the contract with the author makes it clear? Is there certain language that would need to be used in the contract?

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