Giant rubber duck causes big flap with Pittsburgh Cultural Trust

The giant duck coming to our rivers next week is causing a big flap with parties trying to capitalize on its image


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Sitting in a bubble-filled tub on Sesame Street, Ernie spawned generations of warm and fuzzy feelings when he crooned, "Rubber ducky, you're the one."

But whether there will be only one rubber ducky for sale on the streets of Pittsburgh is an issue generating nothing of the sort.

On Friday, a 40-foot-tall rubber duck will float into Pittsburgh waterways, marking the beginning of the Pittsburgh Cultural Trust's Pittsburgh Festival of Firsts.

The Cultural Trust, which has paid to bring artist Florentijn Hofman's Rubber Duck Project to Pittsburgh, would like to control merchandise sold in conjunction with the event. "As a responsible arts presenter, we are committed to maintaining the integrity of the artist's work and all images affiliated with this public art installation," the Trust posted on its Facebook page.

That stance isn't sitting well with ToonSeum founder and executive director Joe Wos, who received a cease-and-desist letter from the Cultural Trust after he created a T-shirt to be sold in celebration of the duck and of a pop-up rubber duck exhibit at the ToonSeum.

Mr. Wos and a friend took about an hour to create a shirt, featuring a cartoon duck swimming above the phrase "Quack N'At," a nod to the popular Pittsburgh abbreviation for "and that."

Mr. Wos posted an announcement about the shirt, which he is selling for $16.99, on the Cultural Trust's Facebook page, where he said he often promotes ToonSeum events.

He received an email from the Cultural Trust noting that his shirts constituted "a major problem."

"We have contacted other organizations that have attempted their own knock-off merchandise but it is unexpected that a partner in the Cultural District would try to use our investment for profit and to further fundraise off of another organization's presentation is truly flabbergasting," wrote Marc Fleming, vice-president for marketing and communications.

The Cultural Trust did not respond to a request for comment.

The Trust is selling merchandise of its own for the festival, which it debuted Friday on the Festival of Firsts website (www.pifof.org/merch/), ranging from $2 for a sticker to $20 for a shirt or a replica limited-edition rubber duck.

VisitPittsburgh is selling generic duck merchandise such as inflatable beach ball ducks and edible marshmallow ducks in its store but will stop doing so when it receives the official Trust merchandise.

"We have no intention of selling rival rubber ducks," said Craig Davis, president and CEO of VisitPittsburgh. "The moment it comes in, we will be selling licensed duck merchandise."

Mr. Wos replied to the initial email by asking whether the Trust wanted him to change the design to look less like Mr. Hofman's rubber duck and received a message reiterating the Trust's opposition to any duck shirts at all.

"Frankly, the ill-will that this is causing is not worth whatever dollars you'll make," Mr. Fleming said in an email.

Mr. Wos then posted about the exchange on his Facebook page, which then began to be shared through social media. Buoyed by supportive messages, he decided to continue selling the shirts.

"I had to make this really hard decision of do I keep this going or do I quietly sink into the background. I decided that I wouldn't quack down. This became something more, about what has in many ways become a corporate arts culture in Pittsburgh," Mr. Wos said, adding that the Trust controlled too much of the city's art scene.

Mr. Wos originally ordered 30 shirts, hoping to sell half of them. He's now sold more than 100 in pre-orders, with a portion of his proceeds going to the ToonSeum.

Mr. Wos believes that the Trust has no control over generic images of rubber ducks, which he believes that his is. Rubber ducks have been produced since the 1800s, he said, and have become cultural icons representing childhood nostalgia long before the Rubber Duck Project set sail.

Michael Madison, a professor at the University of Pittsburgh School of Law specializing in intellectual property, said that artworks are automatically copyrighted even if they are only "minimally creative."

Even though Mr. Hofman didn't create the rubber duck, the giant scale certainly adds a creative element, he said.

Whether Mr. Wos's duck T-shirt, which is for sale at www.quacknat.com, would infringe on Mr. Hofman's copyright is open to interpretation, he said, depending on whether the image is "substantially similar" to the source or whether the concept of "fair use" would apply.

Three-dimensional and public art have led to some thorny issues, he said, with legal precedence built on objects such as taxidermied deer heads, stuffed animals and Halloween costumes.

In the public art realm, Mr. Madison, who also directs the Innovation Practice Institute at Pitt's law school, referenced a lawsuit about the Rock and Roll Hall of Fame in Cleveland. The Hall of Fame sued -- unsuccessfully -- to prevent the sale of unauthorized posters of its building, claiming that the building itself was a copyrighted work of art.

Mr. Wos said that as an artist and museum executive, he is sympathetic to the need for artists to be able to make a living through copyrighted art.

But he believes that on the issue of the rubber duck, the Trust is squeezing out smaller artists, such as himself.

"It symbolizes the David and Goliath story," he said. "A little rubber duck versus a big rubber duck."

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Anya Sostek: asostek@post-gazette.com or 412-263-1308. First Published September 21, 2013 4:00 AM


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