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Giant duck flap highlights IP misconceptions

Originally published in AdvocateDaily.com

Toronto intellectual property lawyer John Simpson says a dispute over a massive rubber duck rented as part of Canada’s 150th birthday celebrations and the media’s coverage of this dispute highlights some common misconceptions about IP law.

According to CityNews story, Ontario’s provincial government has paid a $120,000 grant to bring the six-storey, 13,600-kg duck to Toronto for a festival on the city’s waterfront on the Canada Day weekend.

As well as the uproar over its cost, the duck brought fresh controversy when a Dutch artist claimed in a statement from his studio that Ontario’s version of the duck, which is being provided by a Minnesota businessman, is a “counterfeit” of his original artwork.

“Much of the commentary has described it as a copyright dispute, but no one is claiming copyright in the duck” Simpson, principal of IP and new media law boutique Shift Law, tells AdvocateDaily.com. “The dispute is over the artist’s idea of using a giant floating rubber duck to create joy and hope.”

A spokesperson for the artist told CityNews that his design was being used by the American event planner for profit.

“The duck was never supposed to be used for profit,” the spokesperson said. “It was designed to be a public art installation to bring joy and hope wherever it went.

“By renting the duck at exorbitant rates against the wishes of its creator, [he] not only is stealing this joy from the public, he is also stealing from the legitimate artist and creator of this exhibit.”

The event planner countered that his team had redesigned and built their own duck without help from the artist, adding that the duck’s image had long been in the “public domain.”

Simpson says he understands the artist’s displeasure with the for-profit version of the duck purchased by the provincial government.

“This is a case about an artist having a vision for his creation and someone else coming up with a similar idea that was inconsistent with his concept,” he says. “But that doesn’t bring us into the realm of copyright because we’re talking about an idea as opposed to the expression of an idea.”

“He’s not alleging that the duck the government paid for was an exact replica of his duck, such that the artistic features of his work were reproduced without his authorization. His complaint seems to be that if the government liked his concept, they should have come to him instead,” Simpson adds.

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