Hot Air, Shells, and Flowers
Can You Copyright an Inspiration?
by
Cindy Hill, Esq. for Fine Art Registry™
At the far end of the economic spectrum from your neighborhood ‘starving artist’ who blithely toils in her garret studio, sits the business-art empires, the incorporated names that appear on thousands of pieces, many of them never touched by the artist himself. Think Thomas Kinkade and his legions of art-with-light-in-them. Think Woody Jackson with his Ben and Jerry’s ice cream container cow designs. But this isn’t a strictly modern phenomenon. Think Norman Rockwell, or Wallace Nutting, with his rooms full of employees hand-coloring photo prints with his name on them. But, the weary public asks (once its credit cards have been maxed out buying these things as Christmas gifts for all the aunts who collect them), is it art?
The question of whether or not a piece which has been reproduced to the point that it loses its emotional and aesthetic impact constitutes art has probably been debated since caveboys started stamping handprints on cavemoms’ ceilings. No one will ever quite agree from an art criticism standpoint, but the more important question from the artist or art collector’s perspective is not whether it’s art, but whether these widely-recognized schools of style under the rubric of one artist’s name – i.e. cottages with light-streaming windows; New England scenes in black and white photography, glossed over with color washes – are copyrightable, and if so, when does someone else’s piece in the same style school constitute a copyright infringement?
The answer is, unfortunately (like my watercolor efforts), muddy. Assuming that the artist/creator of the so-called ‘knock off’ piece signs it with his or her own name and doesn’t try to actually pass it off as a work of the famous art-emperor (which would clearly be a copyright violation), courts are stuck comparing the works on a case-by-case basis. Artwork doesn’t have an established set of match-points, like police use in comparing fingerprints. Size, shape, color, scale, theme, and subject are all elements one can look at – yet Georgia O’Keefe’s flowers and mine, even on the same-sized canvases, could never be confused one with the other.
The art-emperors, however, have the resources to wield copyright laws and civil lawsuits as a sword to protect, and expand, their vast holdings, sometimes controversially. Chihuly, Inc., a renowned glassblowing firm employing about a hundred glassblowers under the umbrella of Dale Chihuly, with a reported 2004 income of over $29 million, has been all over the art news this year with lawsuits against a rival – and former employee – glassblower and one of his contract suppliers. (The suit against the subcontractor Rubino was settled in early August ‘06 for undisclosed terms; the suit against rival Kaindle continues as of this writing.)
The Chihuly lawsuits allege copyright violations for pieces signed by the rival artists which contain similar design elements – i.e. basket shapes, off-center forms inspired by nature-like shells and spirals, bold colors – to Chihuly’s. The countersuits allege that this is nonsense – each hand blown glass piece is unique, and the elements alleged by Chihuly to have been copied are fundamental aspects of the glassblowing form; one may as well try to claim copyright on a hollow cylindrical twelve-ounce glass vessel designed for transporting liquid to the mouth. The artists sued by Chihuly – and others to whom his institution has previously sent letters or emissaries demanding cessation of copycat work – assert that Chihuly has overstepped the proper bounds of copyright, claiming ownership of basic techniques that are universal to the craft, as if one sought to copyright oil, canvas, and burnt umber pigment rather than a specific painting.
Remember that copyright law protects an original creative work once the idea is fixed in a tangible medium. But what constitutes an ‘original creative work’? Someone at Corning Glass designed their various drinking glasses, and then set up machines to form them by the millions; when the designs are unique, they may comprise a trademark (like their fluted French white casserole dishes), but despite skillful supervision, each of the glasses punched out by those machines is not an ‘original creative work.’ Trademark, not copyright, would be the law applicable to Corning Glass design knock-offs.
Chihuly glass is blown by hand, one unique individual piece at a time – but not by Dale Chihuly (who, it is reported, hasn’t been able to blow glass for over two decades due to an injury). In fact most media reports question the extent to which the ‘artist’ is creatively involved in each individual design, as opposed to passing broad parameters on to his work-for-hire employees or contractors who then have the benefit of a steady business of producing ‘Chihuly Glass.’ When thousands of pieces are produced under broad directives to make, say, blue shell-shaped bowls, then sold under a single corporate name, is the production more like a Georgia O’Keefe painting, or the ubiquitous Corning orange juice glass?
Assuming that each and every piece produced is considered an original creative work, the question a court would look at is whether the pieces produced by another glassblower constitute a ‘derivative work’. According to the U.S. Copyright Office, a “derivative work,” is “a work that is based on (or derived from) one or more already existing works... Derivative works, also known as “new versions,” include such works as translations, musical arrangements, dramatizations, fictionalizations, art reproductions, and condensations.” Under U.S. Copyright law, only the original copyright holder has a right to make or license a ‘derivative work’ or ‘new version’ of her copyrightable artwork.
In a 2003 Ninth Circuit Court of Appeals Case, the court ruled that production of a jellyfish encased in glass was a work “first expressed by nature” and “the common heritage of humankind,” and thus not copyright-able, even though an artist might “protect the original expression he or she contributes” to such nature-based ideas. The legal question which is likely to be at the forefront if Chihuly’s suit were to come to trial would be whether the basic shapes inspired by nature which Chihuly claims copyright for are more like the common heritage of human kind, or more like an original creative expression. To prevail, Chihuly would have to demonstrate that specific expressions conceived of by his own creative imagination and locked in glass were indeed duplicated or ‘ripped off’ by the defendant glass artist. Given the abundance of beautiful glass works throughout centuries that have been inspired by
natural forms, this will be a difficult row to hoe.
So is the Chihuly suit good or bad for art? On the one hand, it is good to see an artist vigorously defending the copyright of his designs and his ability to produce economic gain from having an established artistic reputation. The fact that an artist has economically succeeded within his own lifetime should be cause for celebration. On the other hand, were Chihuly to prevail on some of his claims and effectively ‘lock up’ glass-blown objects inspired by natural forms, the world of artistic creativity would suffer. There’s an old saying that imitation is the sincerest form of flattery, and in some fields – like clothing designers whose fall lines are swiftly copied by cheap knock-off companies, and science fiction show writers whose works inspire vast collections of ‘fan fiction’ – the compliment is gladly accepted, even where copyright might, arguably, be infringed upon. And competition in art, as in other market fields, may well spur artists on to do whatever they do bigger, better, and more creatively when one can improve upon the field?
While the settlement of such suits out of court for undisclosed terms may be practical for the parties involved, it does not help other artists understand the parameters within which they must work. With the written word, the lines are much clearer – one can copyright, say, the text of ‘Gone With the Wind’ or the character of Scarlett O’Hara, but one can not copyright the concept of the pastoral novel, the civil war novel, or the antebellum southern-belle epic/romance. Applied to visual arts, the question of what is mere style inspiration and what is a ‘rip off’ is considerably more difficult. Is a Chihuly-like chandelier actually Tara, or just another white-columned southern mansion left burning as the handsome rogue rides off into the sunset? Unless a court decides in a publicly-issued opinion, less-known or emerging artists run the continuing risk of being bullied by art-emperors who have the resources to shut down competition, and the art field as a whole may suffer.
An artist’s best defense under the present muddy law is clear and timely public assertion of their own copyrights, by registering their works with the U.S. Copyright office and also with Fine Art Registry™. One thing that will help protect their interests is to enunciate as clearly as possible the elements that make their piece and style unique, and encapsulate this in a written description to accompany the registration of the work. This description is also the selling point, the words which will explain both where the work fits in the art world context (a bold abstract oil, a pastoral landscape drawing) but also why it is different from, unique, and indeed better than other works being produced in that genre. I am looking at a beautiful large watercolor drawing by Pakistan artist Qudsia as I write this – its square format, smoky, dream-inspired swirling shapes, and most intriguingly, it’s palette drawn from classical formal Mughal paintings, including crimson, lapis blue, and streaks of gold leaf, combine to produce the unique expression of this remarkable artist’s vision, even though countless other artists produce abstract watercolors. Descriptors such as this accompanying the public registration of a work will help the artist – and art buyers – distinguish the work from others in the genre, and will help in the defense of any copyright infringement allegations by mega-artists working in the same genre.
— Cindy Ellen Hill, Esq. | November 19, 2006
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