Check your rubber duck: is it original?

It is usual to open Latin American newspapers and read about protests. But what caught my eyes this time was to see a case of plagiarism in the middle of an actual ‘protest’.

Brazil is in the middle of a mayhem for many reasons (zika, will Brazil be ready for the Olympics, and politicians involved in cases of corruption, to name some). This time the protest was related to the accusation of Brazil's President Dilma Rousseff. The protesters are using as a mascot a rubber duck. But this is not any rubber duck. This is said to be a ‘copy’ of the famous rubber duck made by Dutch artist Florentijn Hofman. Mr Hofman’s rubber duck has traveled the world since 2007. He has been spotted in countries such as Japan, Taiwan, New Zealand and even visited Brazil.

What is the copy, if any?
According to the news published by BBC, the case is about copyright infringement and an exactly copy of Mr Hofman’s design. Is it?

Here comes the fishy bit: the ‘original’ duck appeared as part of an exhibition in Brazil, and this version of Mr Hofman's duck was produced in a Sao Paulo factory. This same factory produced the new claimed copied duck. However, the owner of the factory, Mr Sousa, affirmed that they have produced both ducks: Mr Hofman’s version as required at the time for the exhibition, and the new duck, but assured that the design was not copied. He noted that he will “not put [his] reputation at risk" and he has “experience in this kind of jobs and this is a very simple design. Why wouldn't we spend four hours redesigning it?"

IPRs in Brazil:
Industrial Design is protected under Brazilian Law. As in many jurisdictions, one of the requirement is novelty and thus, will take into account all previous designs (state of the art) that have been made public in any place of the world and by any means before the filing date (priority date). As acknowledged by Mr Santos, the duck's design is common and thus, it would not have been protected under design.

Copyright also is available in Brazil which is a member of the Berne Convention and thus, not requirement of any formal registration obligation. Works are protected automatically from the moment of its creation. However, it is advisable to register the work as in many other Latin American jurisdictions do advise.

In this particular case the duck does not appear to be registered but it does not mean that it cannot be copyright protected - the technical drawings may be protected. While there is a main difference between the two ducks (the original has normal eyes and the claimed copied duck has crossed eyes) it does not matter for there to be an infringement since the test is about quality not quantity. So, ignoring the eyes, is the said copied work reproducing the whole or a substantial part of the protected work?

A case of spot the difference?

Section 29 of Brazilian Law No. 9610/98 sets a list of actions which constitute copyright infringement and relevant to this duck we could mention: complete or partial reproduction of the works or, plagiarism. The causal link is indeed of no problem since Mr Sosa had direct access to the technical drawings - he prepared Mr Hofman’s version. On the other side of the coin, defences are also available to this ‘copy’ duck such as the drawings has no originality and thus, not protected and/or the copy duck is sufficiently different from the copyrighted work.

Talking about duck...well said Mr.

The question then is based on: does the duck’s technical drawings constitute ‘artistic work’ worth of protection? Copyright does not require for the work to be unique or inventive, the Brazil requirement is that actually the work needs to be fixed and that it has to be a creation of the mind. Can we said that this drawing contains creativeness?

In the meantime, ducks are still used in protests against the government.