There is no ducking it. Dutch artist Florentijn Hofman’s giant rubber ducky creation is back in the news, and once again is the centre of a controversy over copyright. This time the duck has surfaced in Brazil, where a group protesting government corruption and high taxes is using a version of Hofman’s giant duck (but with crosses for eyes) to send a message to the government. Written across its chest is the slogan “Chega de pagar o pato”, a Portuguese expression literally meaning “we won’t pay for the duck any more”, (although someone has pointed out to me that ducks are not yellow, only ducklings). To non-Brazilians this may seem like a strange expression but I am informed by a Portuguese-speaking friend that “paying the duck” means that the duck has to be compensated for being eaten, and the slogan is meant to convey the point that the duck (which represents the people of Brazil) is being consumed by corruption. So this gets translated colloquially as “we won’t pay for what is not our fault any more”, or “we won’t take the blame any longer”. Clear? No? Oh well…..I guess you have to be Brazilian to really understand.
But back to copyright issues. Hofman is claiming the duck is an exact replica of his design and constitutes copyright infringement. The Brazilian protesters could perhaps respond that they are making legitimate use of copyright exceptions by indulging in satire or parody! A parody exception apparently exists in Brazilian copyright law, and would be an interesting defence, if indeed there is a violation of copyright law. Although one can debate whether Hofman’s design is original (in that he has made a very large version of a common design), this is not the first time that his giant duck has been involved in a copyright dispute.
In June of last year, at the Philadelphia Tall Ships Festival, Hofman’s giant duck appeared without his authorization. It seems that he had licensed his designs to a firm organizing the LA Tall Ships Festival the previous year, and this firm, which was also the producer of the Philly event, then produced another giant duck for Philadelphia. The producer claimed that even though the Los Angeles organizers had paid Hofman for his design and credited it to him on the LA Tall Ships website, the one in Philadelphia was “not his (Hofman’s) duck” but “just another large inflatable duck.” Perhaps it was poetic justice that the Philly duck didn’t stand up to expectations, and suffered an irremediable tear, a deflating experience for the children of Philadelphia who had come to see it.
In 2013 the duck sailed into controversy in Asia. Problems cropped up in Taiwan where Hofman complained of unauthorized rubber duck-themed merchandise being circulated, including duck-design stored value cards used for transportation or other payments issued by the Taiwan Smart Card Corp. It also made headlines in Mainland China. After an authorized version of Hofman’s giant duck appeared in Hong Kong harbour, knock-offs quickly appeared in several Chinese cities prompting the China Daily to highlight fears of copyright violation. The duck became a symbol of the differences between Hong Kong, an autonomous part of China under the “one country-two systems” formula worked out when Britain returned the territory to Chinese rule in 1997, and where intellectual property rights are rigourously protected, and China proper where intellectual property rights are often perceived as more of a passing nuisance than something to be respected and paid for. Even within China, the more sophisticated cities looked down their noses on their “second-tier” country cousins who sought to duplicate Hong Kong’s success on the cheap, and Beijing proudly announced that the “real rubber duck”, with Hofman as escort, would be coming to China’s capital city as part of Beijing Design Week.
So with all the controversy, the burning question is whether or not Hofman is really the owner of a copyrighted work by virtue of his giant duck design, and whether those making similar large inflatable rubber ducks are violating his copyright. Not being a copyright lawyer, I am excused from putting forth a legal opinion, but this has not stopped many others. The issue has been considered by such respected publications as the Journal of Intellectual Property Law and Property (inconclusive) and the Latin American legal website, IP Tango, which concluded that in Brazil Hofman’s duck would not be protected as an industrial design but the technical drawings might constitute an artistic work worthy of protection. Beijing Design Week’s organizing committee made copyright protection of Hofman’s work a focus of its event, and in Taiwan the Director-General of the Taiwan Intellectual Property Office is reported to have said that it is “highly likely” that due to its creativeness Hofman’s rubber duck would have copyright protection there. However, back in Philadelphia IP attorney Jordan LaVine was quoted as being very skeptical that the work had sufficient originality that copyright would attach to it. He pointed out that “a rubber duck is an extremely common thing, and making a very large one does not necessarily give someone copyright rights in that artistic expression”. In fact, according to the National Toy Hall of Fame small rubber ducks have been around since the late 19th century (they originally did not float), and have been floating in bathtubs since at least the 1940s.
All this uncertainty is bound to attract the attention of some aspiring copyright lawyer. It is the sort of case that could float or deflate a career. While we can all have a bit of fun with Hofman’s duck (he has created other massive inflatable sculptures as well, which are more original in design), the controversy does raise some serious issues about the rights of creators, and when and how they are to be compensated for their original works. If nothing else, Hofman has brought that issue into the spotlight for all of us to consider.
© Hugh Stephens, 2016. All Rights Reserved