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.

Would Site Blocking (Disabling Access to Copyright Infringing Websites) Work in Canada? Quite Possibly—It Works Well in Australia and the UK.

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As the US, Canada and Mexico wrestle with the difficult task of “updating” NAFTA (judging by press reports of negotiating demands from the Trump Administration, the US wants to turn a Free Trade Agreement into a Managed Trade Agreement, with management in the hands of the US, but that is another story), among the issues to be looked at is the protection of intellectual property. When NAFTA was negotiated in the 1990s the internet was in its infancy. Things like e-commerce and digital piracy had yet to appear. It is a different world today, and arguably one area where all three countries could benefit is to update the provisions of the agreement that deal with the digital world. Online digital piracy has become a big issue globally, undermining the entertainment industries (music, film, television) in all three countries and eroding the value of content paid for and distributed by broadcasters and online content providers. Continue reading “Would Site Blocking (Disabling Access to Copyright Infringing Websites) Work in Canada? Quite Possibly—It Works Well in Australia and the UK.”

Copyright and Politics: Interesting Bedfellows

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On June 22 of this year, Christy Clark, Premier of British Columbia, commonly called “BC”–where yours truly happens to live–presented her party policy platform (aka the “Speech from the Throne”) to the BC Legislature. Ms. Clark and her BC Liberal Party had just won 43 seats out of a possible 87 in the election concluded the previous month. (You may have noticed that 43 is not quite a majority—and that is the nub of the issue). In her policy speech, which is the first act of a new government where it must gain the “confidence of the House” by having its policy proposals approved by a majority vote, Ms. Clark performed a remarkable political turnaround. Continue reading “Copyright and Politics: Interesting Bedfellows”

The Monkey Selfie Case: Will It Have Broader Repercussions for AI and Copyright?

Used with the permission of David J. Slater

I am sure that British wildlife photographer David Slater rues the day that he ever laid eyes on Naruto, the Indonesian macaque, whose “monkey selfie” photo made Slater famous, but also brought him no end of grief and financial hardship. Readers will recall that it all started back in 2011 when Slater, a reputed wildlife photographer, set up his equipment with a view to photographing the goings on of a group of macaques in Sulawesi. The resultant photos, physically taken by one or more of the macaques after Slater set up the camera equipment having noted their interest in it, were promoted by Slater’s agent as the “monkey selfie”. It was a good marketing ploy, and for a time Slater earned some handsome royalties, but it was also an unfortunate choice of words because some users, notably Wikipedia, used the description of the photo as a “selfie” to deny Slater’s copyright and proclaim the work to be in the public domain on the grounds that Slater had not “taken” the photograph, as is generally required by US law for a photography copyright to be valid. Continue reading “The Monkey Selfie Case: Will It Have Broader Repercussions for AI and Copyright?”

UNESCO’s Guidelines on Contemporary Culture in the Digital Environment: Worth Thinking About

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For some people, saying the word “UNESCO” is like waving a red flag in front of a charging bull. For others, like activists in my region who are seeking to have the Salish Sea (the body of water that straddles British Columbia and Washington State) declared a UNESCO world heritage site, it means getting additional protection for valuable natural heritage areas that are under environmental threat. UNESCO has many guises and is the epitome of the good, the bad and the ugly. First, the positive. Continue reading “UNESCO’s Guidelines on Contemporary Culture in the Digital Environment: Worth Thinking About”

Brexit and Copyright: What Happens Next?

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When British Prime Minister Theresa May introduced her new government’s proposed legislative agenda in Westminster on June 21, (through what is known as the “Queen’s Speech) after her disastrous gamble of calling a general election in which she failed to win a majority, one of the key items announced was her intention to introduce what has colloquially been called the “Great Repeal Bill”, legally the “European Union (Withdrawal) Bill”. Given the timetable for Britain’s exit from the EU (by March, 2019), Ms. May has until then to pass legislation to ensure that British law applies to all legislation currently mandated to the EU. That Bill has now been given second reading in Parliament and was not without controversy given the wide powers it will give the government to modify many adopted EU laws through regulation rather than through legislation. While the stated intent is for the Bill to simply enable a technical conversion of laws in order to prevent a legal hiatus, (allowing for any substantive amendments to follow once final authority is returned to Britain), the devil is always in the detail and there is huge potential for material impact on the laws that govern the lives of UK citizens. Continue reading “Brexit and Copyright: What Happens Next?”

The Year of the RAT—Beware

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In the Chinese zodiac, the Year of the Rat (1984, 1996, 2008, 2020 etc), one of the 12 “animals” of the lunar cycle, brings with it good things as well as some cautions. Its prognostications are similar to those of the other eleven animals in the Chinese zodiac and to the predictions of western horoscopes. People born in the Year of the Rat, or “Rats”, are supposed to be “quick-witted, resourceful, versatile, kind, smart and lovely”, according to one Chinese zodiac website. But there is another “rat” out there that is far less benign and which can affect everyone, not just those born in specified years. I am referring to what is known as a “Remote Access Trojan” (RAT), a growing problem world-wide, particularly in Asia. One definition of a RAT calls it “a malware program that includes a back door for administrative control over the target computer.” Continue reading “The Year of the RAT—Beware”