Chihuly and his Art: Who is the True Creator?

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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. I clearly was not on Planet Glass. When the Chihuly exhibit came to the Royal Ontario Museum in Toronto a few months ago, my wife (who was fully au fait with Chihuly), suggested we go. Always willing to broaden my horizons, I went—and was blown away (pardon the pun) by the spectacle. I wandered through crystal forests of spiky rose coloured plants and ventured into brilliant glass gardens, admiring blown sculptures in phantasmagorical shapes and images. It was truly an unforgettable experience. How could he be so creative, I wondered? And so prolific!

And he is prolific. 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. While the courts will have to rule definitively on the case, it strains credulity to accept that someone who worked for so long on so many works did so on a vague promise of future rewards. 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. Another prolific artist is the Chinese sculptor Ai Weiwei, who produces massive works of art, many with significant social commentary. I saw an exhibition of Ai’s work at the Art Gallery of Ontario (AGO). One of the pieces was a collection of rebar salvaged from schools destroyed by the 2008 earthquake in Sichuan. Ai salvaged the 90 tons of rebar from the collapsed schools, took them to his studio near Shanghai and hired workers to straighten them. The point was to underline the scandal of subpar construction at state-run schools where the destruction rate was much higher than in other forms of construction. The rebar was shipped to galleries around the world, including the Royal Academy in London, the Indianapolis Museum of Art and the AGO, among others. Ai of course could not attend as he was at that time under house arrest in China. (Wei has recently been allowed to visit the US where his show, “Good Fences Make Good Neighbours” opened on October 12 at various sites across New York City)

I asked one of the curators at the AGO how they knew whether their display of the work met Ai’s specifications. He responded that general guidance had been provided, but each installation would vary slightly owing to layout and space. In other words the work, known as “Straight”, would appear slightly differently in London, or Toronto, or Indianapolis, all locations where it was displayed. Did these slight variations disqualify these installations from being legitimately described as Ai’s work? Clearly not, which brings me back to the point that often the genius of the creator is exercised through the labour of others, but that in no way diminishes the claim to authorship—and by extension the ownership of the copyright in the works.

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.

We will have to wait and see what the courts decide in the Chihuly case but for me, his works—the ones that bear his name–will always be true “Chihulies”.

© Hugh Stephens 2017. All Rights Reserved.

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