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Originally published December 16, 2005 at 12:00 AM | Page modified December 20, 2005 at 7:59 PM

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Corrected version

Glass artist Chihuly's lawsuit tests limits of copyrighting art

When does inspiration cross the line into imitation? That's the question at the heart of a lawsuit filed in U.S. District Court in Seattle...

Seattle Times staff reporter

When does inspiration cross the line into imitation?

That's the question at the heart of a lawsuit filed in U.S. District Court in Seattle claiming two glass blowers have copied Dale Chihuly's designs and are selling knockoffs at several local galleries.

The copyright-infringement suit, filed Oct. 27 by Seattle-based Chihuly Inc. and the world-renowned glass artist's publishing company, is asking for at least $1 million in damages.

Neither side has fully laid out its case yet, but because copyright lawsuits involving fine art are relatively rare, especially in Washington state, it's raised some interesting questions.

How does an artist go about proving — or disproving — copyright infringement? How do you differentiate between Chihuly's influence on other glass artists and artistic plagiarism? Can he claim exclusive rights to designs that are modeled on things such as Navajo blankets and sea life? And what does it mean for the world of art glass?

William Traver, a prominent Seattle art-glass dealer who is not involved in the suit, thinks Chihuly has a right to go after copycats.

"Clearly, what these people are doing is playing on his reputation," he said.

See the artists' work


Dale Chihuly's work can be seen at www.chihuly.com.

Robert Kaindl sells through a variety of Web sites, including http://artglassproductions.com.

Robert Kaindl, one of the artists named in the suit, disagrees.

"This isn't a fight just for myself. It's for the entire industry," he said.

One of a kind

A curly-haired fellow easily recognizable by his eye patch, Chihuly has long inspired strong feelings.

Fans and critics alike, however, agree on one thing: He knows how to sell himself. He has major installations at Benaroya Hall, Bellagio Hotel and Casino in Las Vegas, and the Victoria and Albert Museum in London.

He's been featured on public television umpteen times. His Web site says his work is in more than 200 museums.

Traver said single Chihuly pieces can run in the $5,000 to $6,000 range, while his more elaborate work can fetch tens of thousands of dollars.

Martha Kingsbury, a retired University of Washington art-history professor, credits Chihuly with bringing "a kind of legitimacy and prominence to the field of glass blowing."

His work also is particularly vulnerable to knockoffs, several art experts said.

"It has to be so popular, so in demand, that someone wants to buy it even if it isn't an original," Traver said. "Rarely does an artist reach that level in their lifetime."

Chihuly hasn't blown the glass himself since accidents left him physically unable to do so. Instead, he has a team of employees who execute his ideas, the lawsuit said.

Normally, copyright-infringement allegations are resolved through negotiation, not lawsuits. Indeed, Chihuly's attorney, O. Yale Lewis Jr., said this is the artist's first copyright-infringement suit.

Chihuly could not be reached for comment.

Galleries pull art

The lawsuit alleges that a former Chihuly employee, Bryan Rubino, was enlisted by Kaindl to make Chihuly knockoffs.

Rubino, who worked for Chihuly for about a dozen years, worked on virtually every Chihuly series, the lawsuit said. The suit claims that Kaindl signs the Rubino-made works as if they were his own, then puts them up for sale in local galleries and through an array of Web sites.

The suit also accuses Kaindl of falsely claiming to have trained under the master and deliberately confusing art buyers about the origins of his work. Kaindl denies the allegations.

The four local businesses that sold Kaindl's work — Unik! in Seattle, Lakeshore Gallery in Kirkland, Kenneth Behm Galleries in Bellevue and Trammell-Gagné in Seattle — were dumbfounded.

Had they received notice from Chihuly that there was a problem, they would have stopped selling Kaindl's glass without a lawsuit, lawyers for several said.

"We sort of feel like we're the innocent victim caught in the middle," said Broh Landsman, attorney for Trammell-Gagné.

They have taken Kaindl's work off the shelves. But copyright-law experts say they can still be held liable if they sold Chihuly knockoffs.

Proving copyright infringement, however, is tricky. Legally, it's a two-part test: The accused artist has to have had access to Chihuly's work and the work has to be "substantially similar."

The first part is easy. Who hasn't seen Chihuly's work?

The second test involves literally putting specific pieces side by side. That's impossible at this point because the lawsuit doesn't name specific works of either artist — a point of contention between the two sides.

"If the plaintiffs cannot identify the ... infringing work, then they have no business bringing a copyright-infringement claim in the first place," Kaindl and Rubino's lawyer wrote in a court filing asking that the case be thrown out.

A judge will consider that next month.

But even if Chihuly's lawyers list specific works, which they are expected to do, "substantial similarity" is a difficult concept. Particularly for someone like Chihuly, who has had enormous influence on the world of art glass.

"What counts as influence?" Professor Kingsbury asked. "When is something actually a quotation?"

Legal experts say if one work of art shows the influence of another artist, that isn't copyright infringement. In other words, you can paint something in the style of Picasso without infringing on his rights.

It's the reason we have a Surrealist school of art, an Impressionist school and so on.

But even if the works look alike, it's not necessarily a slam-dunk.

For example, in 2003 a California court was asked to decide a case involving two works of art, both consisting of a realistic glass jellyfish encased in a clear, tapered glass "shroud." They were virtually identical to the eye. Nonetheless, the court ruled it was not copyright infringement. The first artist couldn't have a copyright on the way jellyfish look. And the glass "shroud" was a well-established technique in glass art.

Concepts not protected

Chihuly might run into a similar hurdle. Many of his works are inspired by things in the real world — Native American blankets, baskets, sea life. You can't claim a copyright to an idea, said attorney Melvyn Simburg, who specializes in this area.

"A concept is not protectible," he said. "Anybody else can be inspired by a basket or a textile."

And just like there are certain chord progressions that are common to a lot of music, and certain plot devices that are common to many plays, glass has similar characteristics that cannot be copyrighted, Simburg said.

"Plaintiffs do not have copyrights ... over the effect of gravity," the defendants argue in court papers. Chihuly "is seeking to corner the market on an undefined glass aesthetic."

But glass art expert Traver and Chihuly's lawyer say that once the works are compared, it will be obvious that Chihuly was wronged.

"Anybody with an eye can see this is a direct copy of what Dale has done over the years," Traver said.

He said he recently saw a piece of glass art that he swore was Chihuly's. But when he picked it up, it had one of the defendant's names on it (he won't say which).

Kaindl even uses some of the same names as Chihuly. For example, he has categories called Seaforms and Ikebana on his We site, both of which are the titles of Chihuly series.

Still, legal experts say copyright cases are so fact-specific, it's tough to predict what's infringing and what's not.

"The answer is you don't know unless you get into a lawsuit and a judge decides," Seattle lawyer and law-school teacher Robert Cumbow said.

Seattle Times researcher Gene Balk contributed to this report.

Maureen O'Hagan: 206-464-2562 or mohagan@seattletimes.com

Information in this article, originally published December 16, 2005, was corrected December 20, 2005. In a previous version of this story, it was incorrectly reported that one of the defendants, Bryan Rubino, uses some of the same names for his glass art as Chihuly. It was actually another defendant, Robert Kaindl, whose web site lists artwork with the same names as Chihuly series.

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