Rubber Duck by Florentijn Hofman is displayed in Victoria Harbor in Hong Kong on June 1. Photo: IC

Dutch artist Florentijn Hofman, the creator of the 16.5-meter-tall rubber duck that floated in Victoria Harbor in May, announced in August that he would show a taller size version during the Beijing Design Week (BDW) in September. A press conference planned to be held last Thursday to give details, however, was postponed for unknown reasons, and the site in Beijing for the giant yellow duck is still a mystery.

Hofman showed his dissatisfaction when a sequence of Rubber Duck copycats appeared in Chinese cities after his artwork displayed in Hong Kong, seeking to claim that companies that riff on or recreate the Hong Kong duck are infringing upon the artist's intellectual property.

According to artron.net, Wang Jun, an intellectual property consultant for BDW, stated that the design organization wants "to use the Rubber Duck case to drive an awareness program raising the sensibility regarding intellectual property rights around China."

However, some artists take issue with Hofman's work and doubt its original creativity. Chinese artist Xing Xin sent an e-mail to the Global Times calling it a "violation on intellectual property rights or profiteering conspiracy." Xing launched a salon with other artists and critics in Changsha, the capital city of Hunan Province, on August 6 to discuss the negative impact of Rubber Duck.

Shrinking the world



Rubber ducks predate Florentijn Hofman by many years. The first rubber ducks appeared in late 19th century as rubber manufacturing became widespread.

Hofman recalled that his first brainwave of making a huge rubber duck came to him when he was visiting a museum in 2001 and admitted that the model for his Rubber Duck was made by a Hong Kong company, Tolo Toys.

"And I went to the shops, for weeks, to find the most perfect rubber duck, and that was [it]. It's not new. For a hundred years there have been rubber ducks, but I found the best shape and that was a Tolo rubber duck," said Hofman on a conference in Chengdu last month.

In an interview with blouinartinfo.com earlier this year, Hofman described his concept of this artwork: "I always say I'm not making a big object, but I'm making the world smaller. By making [the Rubber Duck] big, I'm taking away egos."

He Peng, the chief of New Millennium Center for Contemporary Art in Hunan, told the Global Times that the Rubber Duck was exactly in the same shape as the Tolo rubber ducks. "I don't think it is a valuable artistic creation to make the larger size of an existing product. And Hofman is not the first one to come up with the idea to magnify a daily thing."

A huge inflatable rubber duck was shown in front of a McDonald's during the 17th Great Black Hills Duck Race in Rapid City in the US in 2006. "Apart from the shape, there is nothing different in the way of creating between this rubber duck and the one of Hofman. But Hofman calls it an artwork," said He Ling, an artist, curator and vice secretary-general of Hunan Youth Artists Association.

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?"