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Friday, May 19, 2006 - Page updated at 11:54 AM

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Glass blower to court: Let me make any glass forms I want

Seattle Times staff reporter

The high artistic and economic stakes in the copyright battle between glass artist Dale Chihuly and two glass blowers were laid out in stark terms Thursday when one of the glass blowers asked a court's permission to continue making lopsided glass forms in any color he chooses.

Shelton glass artist Bryan Rubino, who was sued by Chihuly last year for alleged copyright violations, made the unusual request in a counterclaim filed in U.S. District Court.

The countersuit alleges Chihuly is trying to claim "a monopoly on any and all glass art that is curved, nested or uses certain kinds of colors. [Chihuly] cannot use copyright registrations to protect an idea or process that is so elementary that it would preclude any other glass artist from working or creating any glass art at all."

To illustrate the potential impact of a court ruling on the question, Rubino's lawyer, Scott Wakefield, attached images from a dozen glass artists and studios around the country whose work is both asymmetrical and colorful like Chihuly's.

Chihuly spokeswoman Janet Makela said the studio would not comment on that and other allegations in Rubino's counterclaim because it doesn't discuss litigation.

Chihuly sued Rubino and Redmond art entrepreneur Robert Kaindl in October, accusing them of copying his designs and selling "knockoffs" at several local galleries. Last week, Chihuly alleged in court documents that the two had pored over books of Chihuly's works and picked out designs that Rubino would make for Kaindl to sell.

Kaindl denied the accusations, and early this month he alleged in court documents that Chihuly is not involved in conceiving, creating, designing or even signing a "substantial number" of artworks that bear the Chihuly name.

Rubino also denies Chihuly's charges and challenges Chihuly's image as the sole designer of work that bears his name. In the claim filed Thursday, Rubino says he created or co-authored some of the works that Chihuly is suing to protect, and that some of the work he did for the artist was done "without any creative input whatsoever from (Chihuly Inc.) or Dale Chihuly."

As evidence, Rubino submitted a fax he says he received from Chihuly. The fax includes sticklike drawings and the following instructions: "Here's a little sketch but make whatever you want. We'll get everything up to Tacoma when you're done and I'll try to come down while you're blowing. Till then, Chihuly."

The fax was dated Dec. 10, 2003, when Rubino was working as an independent contractor for Chihuly. Rubino collaborated with Chihuly from 1988 to 2004, both as an employee and an independent contractor.

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Rubino is asking the court to declare him a co-author of some of Chihuly's more famous pieces, and award him profits associated with those works.

Chihuly acknowledged in his suit that "Rubino worked on virtually every series created by Chihuly." But he claimed that Rubino signed away any rights to the work when he was Chihuly's employee, and that as a contractor, all of the work Rubino made for Chihuly was done under Chihuly's direction and control.

Susan Kelleher: 206-464-2508, or skelleher@seattletimes.com.

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