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Moi v. Chihuly Studio, Inc.

United States District Court, W.D. Washington, Seattle

June 20, 2019

MICHAEL MOI, Plaintiff,
CHIHULY STUDIO, INC., et al., Defendants.



         This matter comes before the Court on defendants' “Motion for Summary Judgment.” Dkt. # 90. Plaintiff initiated this action in May 2017 alleging that he is the co-author of certain joint works produced with defendant Dale Chihuly, seeking an accounting and imposition of a constructive trust on all revenues received or derived from the joint works, and requesting an injunction correcting past misstatements regarding plaintiff's ownership and authorship of the joint works. In addition, plaintiff alleges that Chihuly promised to compensate plaintiff for his artistic contributions and argues that Chihuly should be estopped from disavowing that promise. Defendants seek dismissal of all claims against them.

         Summary judgment is appropriate when, viewing the facts in the light most favorable to the nonmoving party, there is no genuine issue of material fact that would preclude the entry of judgment as a matter of law. The party seeking summary dismissal of the case “bears the initial responsibility of informing the district court of the basis for its motion” (Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)) and “citing to particular parts of materials in the record” that show the absence of a genuine issue of material fact (Fed. R. Civ. P. 56(c)). Once the moving party has satisfied its burden, it is entitled to summary judgment if the non-moving party fails to designate “specific facts showing that there is a genuine issue for trial.” Celotex Corp., 477 U.S. at 324. The Court will “view the evidence in the light most favorable to the nonmoving party . . . and draw all reasonable inferences in that party's favor.” Krechman v. County of Riverside, 723 F.3d 1104, 1109 (9th Cir. 2013). Although the Court must reserve for the jury genuine issues regarding credibility, the weight of the evidence, and legitimate inferences, the “mere existence of a scintilla of evidence in support of the non-moving party's position will be insufficient” to avoid judgment. City of Pomona v. SQM N. Am. Corp., 750 F.3d 1036, 1049 (9th Cir. 2014); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Factual disputes whose resolution would not affect the outcome of the suit are irrelevant to the consideration of a motion for summary judgment. S. Cal. Darts Ass'n v. Zaffina, 762 F.3d 921, 925 (9th Cir. 2014). In other words, summary judgment should be granted where the nonmoving party fails to offer evidence from which a reasonable jury could return a verdict in its favor. FreecycleSunnyvale v. Freecycle Network, 626 F.3d 509, 514 (9th Cir. 2010).

         Having reviewed the memoranda, declarations, and exhibits submitted by the parties and having heard the arguments of counsel, the Court finds as follows:


         Between 1999 and 2014, plaintiff was part of a team of assistants who collaborated with Dale Chihuly to create a large portfolio of paintings and drawings for Chihuly's signature. During the painting sessions, lines of paper and any necessary supplies (acrylic and watercolor paints, brushes, mops, charcoal, etc.) would be set out in the work space. Plaintiff and other assistants, working a few feet ahead of Chihuly, would mop out, burn, and/or dust backgrounds in a style and using techniques Chihuly showed them. While plaintiff exercised discretion in some unspecified aspects of the composition, he attempted to utilize the straight lines Chihuly favored and to create backgrounds that looked like Chihuly's existing body of work. Plaintiff would sometimes add “other stuff, ” such as “dots and maybe some circles” and Chihuly's standard forms (reeds, floats, baskets, etc.). Dkt. # 92-1 at 68, 73, 126. Plaintiff acknowledges that most of his backgrounds are rather difficult to differentiate from other assistants' work given that the goal was to create backgrounds as Chihuly would have done them. With regards to two series of works, plaintiff offers additional information. First, plaintiff showed other assistants how to burn backgrounds with a propane torch, and the studio created what is known as “the burn series” using this technique. Plaintiff tended to have a comparatively heavy hand with the torch and is fairly confident that he can identify backgrounds he burned because they have increased burn and bubble. Second, plaintiff conceived the idea for paintings depicting jack-o'-lanterns and participated in the creation of “the pumpkin series.”

         Chihuly would follow along behind the assistants, adding his archetypal forms, lines, dots, and drips on top of the background created by the assistants. Chihuly created the paintings in part to conceptualize future three-dimensional projects and to communicate designs and instructions to the glass blowing teams. At the end of each session, Chihuly would decide whether to sign or discard the works produced.[1] Signed works were registered, photographed, and stored. Some of the paintings became the inspiration for glass works, some were publicly exhibited, some were sold, some remain in Chihuly's personal archive, and some were destroyed. Plaintiff had no control over the use to which his contributions were put, either as to the forms that were superimposed on the backgrounds or as to the disposition of the paintings. To the extent paintings were publicly displayed or offered for sale, they were represented as Chihuly's work, usually with no acknowledgment of the assistants or their contributions. Plaintiff did not expect attribution: he considered the paintings to be Chihuly's and was “doing [the work] strictly for [Chihuly]. We were not doing it for ourselves.” Dkt. # 92-1 at 109 and 125.

         Chihuly promised plaintiff that he would be compensated for his participation in the painting sessions and told plaintiff that his staff was keeping track of the paintings plaintiff helped produce. Plaintiff believed that Chihuly and the assistants were a team and, since he was not an employee, he would be compensated for his time and contributions. Plaintiff did not have any idea what the amount of compensation would be or when he would be paid: he “trusted and believed in [Chihuly] and . . . believed that he would just take care of [plaintiff] fairly.” Dkt. # 92-1 at 76. There was no written agreement defining their relationship or specifying compensation.

         In January 2015, Chihuly had a falling out with another assistant, Billy O'Neill. Plaintiff's contact with the studio diminished rapidly thereafter. In September 2016, plaintiff was told that O'Neill had sued Chihuly and that plaintiff's friendship with O'Neill was the reason he was no longer invited to participate in painting sessions. On December 24, 2016, plaintiff learned that Chihuly had repudiated his promises to “take care of” three other assistants, including O'Neill. Plaintiff asserts that, until December 24, 2016, he believed his ownership interest in the paintings he had worked on was uncontested and secure and that Chihuly would compensate him for his work. He filed this lawsuit shortly thereafter.

         In the context of this litigation, plaintiff reviewed the Chihuly portfolio and identified 285 paintings “that - to the best of his recollection - were created during painting/drawing sessions that he participated in, and therefore, was integrally involved in and substantially contributed to the creation of said works.” Dkt. # 92-1 at 23-32. Plaintiff has not specified what elements of each painting constitute the background he contributed, nor has he identified “other stuff” he added to any particular painting.[2]


         A. Joint Authorship

         Plaintiff alleges that his collaborations with Chihuly qualify as “joint works” pursuant to 17 U.S.C. § 201(a) and that plaintiff is therefore the co-author and co-owner of the works per the Copyright Act, 17 U.S.C. § 101, et seq (“Copyright Act”). A joint work for purposes of the Copyright Act is “a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.” 17 U.S.C. § 101. “In a joint work, the joint authors hold undivided interests in a work, despite any differences in each author's contribution. Each author as co-owner has the right to use or to license the use of the work, subject to an accounting to the other co-owners for any profits. Thus, even a person whose contribution is relatively minor, if accorded joint authorship status, enjoys a significant benefit.” Erickson v. Trinity Theatre, Inc., 13 F.3d 1061, 1068 (9th Cir. 1994) (internal citations omitted).

         As an initial matter, each purported co-author must make “an independently copyrightable contribution” to the work in order to have a valid claim to ownership. Richlin v. Metro-Goldwyn-Mayer Pictures, Inc., 531 F.3d 962, 968 (9th Cir. 2008) A copyrightable contribution is not, in itself, sufficient to prove joint authorship under the Act, however. Id. (finding that the contribution of a fourteen-page original, creative, copyrightable story which became a substantial portion of the motion picture at issue in the case, did not give the authors of the story co-author status with regards to the movie). The Ninth Circuit has set forth several factors that are among the criteria to be weighed when determining a claim of co-authorship under § 101. The first factor is whether the claimed author “superintended” the work by exercising control. Aalmuhammed v. Lee, 202 F.3d 1227, 1234 (9th Cir. 2000). The second factor is whether the parties made “objective manifestations of a shared intent to be coauthors.” Id. Lastly, the Court considers whether “the audience appeal of the work turns on both contributions ...

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