Art or commerce
When Hofman created the first Rubber Duck in France in 2007, he magnified the Tolo bath duck in an artistic way without informing Tolo Toys.
He Ling told the Global Times, "As an artwork, it is fine to appeal claiming 'fair use.' But later in December 2007, Hofman sold the bronze derivatives of the Rubber Duck, which is his first step of infringing on the copyright."
In 2009, Hofman started to cooperate with Tolo Toys launching the limited edition of toy Rubber Duck with his signature. "It seems to be alright, but actually hides the complicated relationship between the artwork, commercial product and copyright."
He Ling said that if Hofman cooperated with Tolo Toys to develop the Rubber Duck toys for commercial profits, it will be hard to define the Rubber Duck exhibition as a commercial promotion activity or a huge inserted advertisement, and in both cases it cannot be regarded as a work of art. And the "fair use" items are not available for protecting any of the commercial use from infringing on the original copyright.
Xing commented, "If the motivation is for commercial profit, it can only be called as a 'design' rather than 'artwork,' even though some of the nice pieces of designs are artistic in perspective."
"Many artists are supported by different organizations, and excellent artworks indeed help the sponsors to gain some commercial profits. But we should separate art from commercial activities," said He Ling, "What we call 'art' is independent from business and politics, focusing on the creating methods and connotation."
According to Zeng Hui, the deputy director of BDW, Rubber Duck is a pure contemporary artwork that resonates with people, recalling happy childhood memories and inspiring love. In a report by the Beijing Morning Post, Zeng did not deny that Rubber Duck is successfully marketed, but said, "it is different from the marketing of hard advertisements. Hofman promotes it in the way of public art, emphasizing charity."
Copyrighting the derivatives
Besides the discussion on whether Rubber Duck is an artistic work, some Chinese artists also raise questions on whether Hofman has the right to authorize the retail of the derivatives.
Given the legal definition established by the example of Marcel Duchamp's work Fountain (a porcelain urinal), Xing believes that the copyright of the artwork belongs to the artist, but not the derivatives.
"With the processing of artistic creation, artists can use the design of existing objects with individual intellectual property rights, and (without altering the design) create a new artwork of his or her own intellectual property rights. But that's the end of it! He or she is never allowed to develop similar or new products with the design of the product that has its own intellectual property rights," Xing wrote in the e-mail.
According to a report in the Youth Times, Hofman has signed an exclusive 6-year manufacturing contract with a Hong Kong company to produce mini Rubber Duck souvenirs. He is also collaborating with a culture and arts company in Beijing to develop other derivative products.
For this, Xing asked, "The same design, can it be owned by two respective owners? And they can respectively develop derivative products with the design?"
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