this raises a few issues for me. as the linked article points out, chihuly’s case has a few major issues that make him unlikely to succeed. the law does not traditionally recognize copyright in a style. chihuly must show that specific copyrighted works were infringed.
the problem for chihuly is that the value in his work seems to be based on the technique rather than the ultimate resulting expression, i.e., follow his technique and you wind up with pleasing though not identical glass sculptures.
copyright law, however, only protects specific expression, not the underlying idea or technique. essentially, it will be difficult for chihuly to protect his work from these admitted “knockoffs” under traditional copyright law. chihuly has clearly created something of value, but it just may not be protectable. is that fair, who knows?
aside from the merits and ultimate resolution of the case, there is the issue of its “bullshitness.” at this point the suit has only been filed, he has not yet won, the courts have not deemed chihuly’s case meritorious or miserable. so far, this case says nothing about whether or not copyright law is fair and just or unreasonable and stifling.
so if this case is “bullshit,” it is only by virtue of chihuly having filed it. in that respect the case is certainly a comment on chihuly. he is either a hardworking artist protecting his contribution to the world of art glass or he is a greedy fuck stomping on hard working artists inspired by his work. who knows.
maybe, the case is “bullshit” because our legal system allowed him to file it at all? that is a tougher nut to crack. we know that chihuly’s case is far from a slam dunk, but is it so far that he should not be allowed to file it at all? and who would make that decision? after all, desegregation and roe v. wade were far from slam dunks then they were filed.
one might worry about the defendant in this case because chihuly is rich and has set his lawyers to attack these poor guys, who now have to go out, hire and pay lawyers themselves (although in this case the defendents don’t exactly seem poor. heck, if they weren’t making money selling a lot of these things odds are chihuly would not have sued them).
so maybe there should be a rule that if chihuly loses, he should automatically pay the defendants’ legal fees. while that may or may not be just in this case, it presents a serious issue in other situations. big companies would love this kind of rule because it would greatly discourage poor and middle class people from protecting their rights.
in fact, the law does have mechanisms for determining truly egregious cases and compensating defendants for having to defend themselves. lawyers are required to independently verify the merits of a case before signing the complaint. if the case is deemed to be vexatious or brought in bad faith, the defendant can recover his attorney’s fees. in order to make these determinations, however, you have to get in front of the court and dig into the issues.
Pehaps a “process patent” would help in this situation.
It could cover the technique, moreso then the final form.
regards.
ian alter a.o.c.a.
famouscanadiansculptor.com
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