Lawyers for a city agency trying to stop a Montreal lighting designer from touring his illuminated see-saws acknowledged Wednesday that Conor Sampson holds the intellectual property of the artwork.
The Partenariat du Quartier des Spectacles was in Quebec Superior Court asking for an interlocutory injunction to stop Sampson and his company, CS Design, from exhibiting new versions of the teeter-totters.
Quartier des Spectacles lawyer Liviu Kaufman, a partner at Blake, Cassels & Graydon, admitted that under its 2015 contract with the Quartier, CS Design retains intellectual property of the see-saws, created for the 2015-16 Luminothérapie festival.
Intellectual property refers to creations of the mind, like inventions, literary and artistic works, symbols and logos. It encompasses copyrights, trademarks, and patents.
In return, the Quartier has exclusive ownership of the physical work, titled Impulse, which was installed in Place des festivals from December 2015 to January 2016.
However, Kaufman’s colleague Ariane Bisaillon said that by creating new versions of the see-saws, CS Design is violating the Quartier’s unlimited right under the contract to exploit the work, whether by renting, selling, making a video of it or developing derivative products.
The Quartier may not, however, replicate them without written permission.
Bisaillon told Superior Court Judge Martin Castonguay that the new see-saws CS Design has developed are an infringement of the Quartier’s exclusive right to the unique design.
Castonguay remarked that it was not clear to him why the Quartier has been paying royalties of 10 per cent to CS Design on rental income from Impulse if it has exclusive rights, as it claims.
Bisaillon said if that the court did not grant the injunction, the Quartier would suffer irreparable harm.
Contracts to rent out Impulse from 2016 to 2018 have brought in $381,500, according to court documents.
If CS Design is allowed to exhibit its new see-saws, the Quartier’s ones will no longer be unique and the new ones could cut into its market, Bisaillon said.
But Edward Béchard-Torres, a lawyer for CS Design, said the firm’s new see-saws do not pose a threat to the Quartier.
The illuminated see-saws are so popular, the Quartier has been unable to keep up with international demand, he said.
Béchard-Torres added that revenues from art rentals represent a pittance compared to the annual subsidies the Quartier des Spectacles receives from the city of Montreal, which amounted to $6.5 million in 2018.
And he denied the Quartier’s claim that its see-saws’ value depends on their uniqueness, and is diminished by CS Design’s ones.
Since January, CS Design has exhibited the new teeter-totters in London, England, Aberdeen, Scotland and Dubai.
Béchard-Torres said the exhibition in Dubai led to further contracts to display them in Egypt and Turkey.
In January, Pascale Daigle, director of programming at the Quartier des Spectacles, emailed and called CS Design’s client in London to say the see-saws were an illegal copy and that the Quartier might take out an injunction to prevent their display.
CS Design responded Feb. 12 with a legal notice demanding that the Quartier stop interfering with CS Design’s business ventures and that it also stop exhibiting Impulse because of safety concerns.
Since January 2016, the Quartier des Spectacles has developed a business that rents out public artworks, created for festivals in Montreal, around the world through a private company, Creos Experts Conseil Inc.
Impulse is “by far, the Partenariat’s most sought-after work abroad and it has been presented in about 15 cities around the world,” according to the injunction request.
Incorporated Feb. 24, 2015, and located in St-Bruno-de-Montarville, Creos is owned by Benoît Lemieux, who until October 2015 was the Quartier des Spectacles’ director of operations, and his three sons.
In 2015, Lemieux sat on the jury that chose Impulse among 38 entries in a contest to create an interactive art installation for the Luminothérapie festival.
Castonguay said he would render a judgment on the injunction in late summer. In the meantime, he urged both sides to try to reach a negotiated settlement.