At a forum on innovative business creation platforms recently, the issue of property rights arose in connection with the giant yellow Rubber Duck which is being displayed around Taiwan. Everyone present voiced their approval of the duck’s first appearance in the country. However, during the duck’s time in Keelung Harbor, a conflict arose between its creator, Dutch artist Florentijn Hofman, and the display’s organizing team from the Keelung City Government. Due to the conflict, what was meant as an artistic message of purity and simplicity has regrettably deteriorated into a dispute over rights violations.
According to intellectual property legislation, an artist cannot copyright the shape of a duck because of the idea-expression dichotomy, which differentiates an idea from the expression or manifestation of that idea. Hofman has not applied for trademark rights in Taiwan for the sculpture, so the organizing team has not violated any of his intellectual property rights by manufacturing and selling rubber duck products, as Jerry Fan (范可欽) — who headed the organizing team — has claimed. Although manufacturing and selling duck merchandise does not violate intellectual property rights, it is a violation to use Hofman’s name and claim to have obtained exclusive licensing rights. As an example, claiming that singer Jolin Tsai (蔡依林) is your brand ambassador without first obtaining her approval would not only be an infringement of rights, it would confuse consumers and distort competition. The Keelung organizers placed the duck on a turntable and made it quack without first obtaining Hofman’s approval. Although this may have been creative, the creativity applied to someone else’s work without first obtaining the artist’s approval distorted his intentions. That was a violation of the creator’s rights.
In response to Hofman’s dissatisfaction with the “commercial circus” surrounding the display in Keelung, Fan, who was replaced as head of the organizing team, said Hofman was making a great deal of money from royalties, implying that Hofman was also engaged in commercial activities. However, there are many different kinds of commercial activity.
If Hofman’s duck was selling purity, love and peace, for example, he would not agree to allowing someone else to use his work to promote “a circus and entertainment and making money.” Such activities would clearly make the creator feel that his rights were violated.
According to statements from the business forum, the Greater Kaohsiung Government held the most successful duck display because of the integration of private-sector donations and public resources in the planning of the transportation and tourism events, which succeeded in attracting public attention. As the number of visitors increased, they brought business to the local hotel, tourism and cultural industries. Businesses enjoyed an unexpected advertising boost as people flocked to see the display.
The Keelung City Government’s organizing team was too eager. They wanted to produce merchandise and sell it using Hofman’s name. While this may not be an outright violation of the law, it leaves the impression that they were trying to make a profit on Hofman’s back. However, because the government made its own merchandise, it cut into the profits of private businesses.
The Keelung City Government should have played the role of a public administrator: It should have made preparations to allow the public to enjoy this piece of public art. Instead, it was too eager to make a profit at the expense of others, which upset Hofman and the public.
Chiang Ya-chi is an assistant professor at the Shih Hsin University School of Law’s Graduate Institute for Intellectual Property Rights.
Translated by Perry Svensson
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