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." In the comments, he also points to a District Court opinion by Judge Leval (Fisher v. Klein, 16 USPQ2d 1795 (S.D.N.Y. 1990)) that "has some good discussion about sculptuors being able to employ assistants and still remaining sole authors" (which goes to the second of the two issues the Chihuly case presents; see my earlier discussion here).
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: "Employers cannot use contracts to prevent their former employees from using general skills or knowledge that they have acquired in their employment. So it seems to me that Chihuly would not be able to prevent Rubino from working as a glassblower. The issue would be whether Chihuly could restrict Rubino's glassblowing in any meaningful way while passing judicial muster. The test for covenants not to compete is 'reasonability.' Restrictions usually fall into three categories: geographic, temporal, and subject matter. Chihuly would not benefit much from a geographic restriction ('you can't make glass sculptures in California') and any meaningful temporal restrictions would likely be unreasonable ('you can't blow glass for 10 years'). Would he be able to describe the subject matter of his sculptures with sufficient precision to craft a meaningful constraint on Rubino? Maybe. Would a court think that is reasonable? Hmm. I don't remember ever seeing a case quite like the one you imagine."
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. Plus, he's bullying another artist. Even if his claim is sound, it might not have been wise to sue . . . . 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."
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." But I think Professor Tushnet has the better of this argument: "I'm not sanguine about the chances of joint authorship, which in the 9th Circuit (among others) requires that the person who was generally considered the author before the dispute erupted to have intended to treat his collaborator as a joint author. And the reason that Chihuly's name is on the works -- he's the core of the business, the author-figure on whom a large industry is founded -- is good reason to believe he didn't intend that, no matter what the collaborator thought. If Chihuly contributed any copyrightable expression at all, he will probably get 100% ownership."
And 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.'"
