You’d think that a giant rubber duck could waddle its way into Philadelphia without inciting controversy or starting a potential international legal war. But that is not the case. We learned this lesson on Monday afternoon when an email popped up in our inbox with the ominous subject line: “Unauthorized rubber duck project in Philadelphia.” The author was Dutch artist Florentijn Hofman, who is none too happy with the giant 61-foot, 11-ton rubber duck set to visit our shores the last weekend in June as part of the Tall Ships festival.
Hofman’s ducks have appeared more than 20 times all over the world, from Azerbaijan to New Zealand to, er, Pittsburgh. Usually, when an exhibitor wants to display Hofman’s giant rubber duck sculpture, Hofman doesn’t actually send them a duck. Instead, he sends them drawings and instructions, and the exhibitor finds an inflatables fabricator who can make the duck according to Hofman’s specifications.
Hofman contracted with a company to bring his giant rubber duck to the Tall Ships festival in Los Angeles last year. He sent his drawings and specifications, and, indeed, a giant rubber duck did appear on the Los Angeles waterfront. (The people behind Philadelphia’s Tall Ships festival are some of the same people behind last year’s Tall Ships festival in Los Angeles.)
The producers of that Tall Ships festival used the giant rubber duck to promote their event, billing it as the “world’s largest rubber duck,” no doubt attracting plenty of families to the festival who might not have come just to see the Battleship Iowa. And still today, the giant rubber duck is the first thing you see on the Tall Ships LA website, and if you click through, the giant rubber duck that appeared in Los Angeles is credited to Hofman.
Hofman says he first learned that the giant rubber duck was appearing at Philadelphia’s Tall Ships festival on Monday, after he received emails from Philadelphians saying how excited they were that his artwork was coming to their city.
“I was shocked,” Hofman tells us on the phone from his office in Holland. “They don’t have permission to show my duck again. And they are charging money for tickets. I want this rubber duck for the whole world to see. It is sad. They make it into this joke, but the rubber duck is not a joke. It is serious artwork which connects all people in the world.”
The way Hofman tells it, he was never even paid for the use of his duck at the Los Angeles festival, and now the organizers have taken the exact same duck and moved it to Philadelphia, using it to promote the festival here in much the same way that they did in 2014 on the West Coast. Just look at the Tall Ships Philadelphia home page. And Hofman says that they are doing so without him agreeing to it. “They are basically saying ‘Fuck you,'” he adds.
But Tall Ships Philadelphia producer Craig Samborksi, who also produced the Tall Ships LA fest, says not so fast.
Samborski claims that Hofman was paid for Tall Ships LA — he thinks it was $50,000 — but admits that Hofman may not have received his final payment. But, more importantly, Samborski says that the duck used in the Los Angeles event and now in Philadelphia isn’t even Hofman’s duck.
“It’s not his duck,” Samborski insists. “It’s just another large inflatable duck.”
According to Samborski, Hofman was paid to deliver a set of engineered blueprints that would allow Samborski’s team to build Hofman’s giant rubber duck.
“He did not do that,” says Samborski. “He provided what I would classify as artist sketches. They weren’t engineered plans. They were line drawings. And we asked for an 18-meter-high duck, and he sent plans for a 12-meter-high duck.”
And so, Samborski says, he hired people to come up with engineered plans for an 18-meter-high rubber duck, and then he hired others to build the thing.
“The two companies I went to wouldn’t even build it based on his plans,” he says. “It wasn’t structurally safe.”
But what about the Tall Ships LA website, which clearly credits Hofman with the duck?
“Ah, thank you for pointing that out,” says Samborski. “I am going to make sure that’s changed now. We fully believed we were going to get his duck for that event, and once we didn’t, I guess we never changed the site.”
Samborski adds that he doesn’t have a contract with Hofman in any event, explaining that the company that produced Tall Ships LA — a company with which he was involved — is now defunct. It was that company that had a contract with Hofman.
When we told Hofman of Samborski’s claims, namely that the duck set to appear in Philadelphia is not his duck, he was incredulous.
“It’s the exact same duck!” he yelled over the phone. “I am furious. He is just trying to score. This is very tricky and cheeky of him. He is a dishonest man.”
“Those are some awful things to say,” Samborski retorts. “If I feel anything, it is a certain amount of buyer’s remorse. What we got was not what we were told we were getting. He was paid a very hefty sum of money for not delivering what he promised. And now this has turned into a very unpleasant situation.”
Hofman tells us that depending on what happens next, he may have to get his lawyer involved.
“I generally don’t personally believe in suing,” he says. “I’m an artist, and I like to make great work without bringing negative attention on this super-happy global artwork. But they are just cheating, showing my work without approval. And so, we may have to take legal actions.”
Well, good luck, says prominent Philadelphia intellectual property attorney Jordan LaVine of Flaster Greenberg. Putting aside the issue of the contract, which was, according to Samborski, made between Hofman and a now-defunct company, the issue is really one of copyright protection.
“He is essentially claiming a copyright in large rubber ducks,” observes LaVine, whose clients include the New York Times, Martha Stewart and Ancestry.com. “The touchstone question here is, does his work have enough originality that copyright would attach to it. 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. This just looks like a standard rubber ducky.”
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