不知何时，香港大黄鸭变得这么有名。环球时报的记者给我打电话的时候，我尚不清楚香港大黄鸭究竟是什么东西，只能先“采访”了一下记者朋友，等记者朋友告诉我大黄鸭是怎么回事的时候，我才就大黄鸭事件中可能涉及的法律问题回答了记者朋友的提问。
    香港大黄鸭出名之后，许多地方开始复制大黄鸭，淘宝上也有销售大黄鸭的。应该说，遇到这种情况第一时间想到的就应该是是否侵犯知识产权的问题。一般来说，知识产权分为三个部分：著作权、商标、专利。因为大黄鸭并非有什么实用性，专利的问题就不要考虑了。有的朋友认为大黄鸭的复制可能涉及商标问题，我想这个一般也不涉及。商标是商标，商品是商品，这两者是不同的。商标用在商品上区分商品来源，商标和商品不能混为一体。有人说把大黄鸭注册为商标，他人就不能销售大黄鸭了。这个说法是不妥的。准确的说，应该是把大黄鸭注册为商标，别人就不能销售大黄鸭牌的商品了（有可能是大黄鸭牌的大黄鸭，但是其他牌子的大黄鸭还不能管）。所以，这个问题可能主要是著作权的问题。
    受到著作权法的保护首先应该是著作权法规定的作品，是作品才有权利，有权利才能谈到侵权问题。什么是著作权法保护的作品呢？有两点是必要条件：1、在文学、艺术和科学领域；2、具有独创性。如果大黄鸭是艺术品的话，第一个条件就满足了。下一步就要看大黄鸭是否具有独创性。独创性，一是“独”，即由作者亲自完成，并非抄袭；二是“创”，即有一定的内容和创造性。有人说，大黄鸭并没有独创性，因为到处都可以看到这种模型，只是大点罢了；也有人说，大也是一种独创性。各国对于独创性要求不一，我国要求比较低，具有基本的独创性即可。大黄鸭有没有独创性，还是需要具体问题具体分析的，没有调查本人就没有发言权了。
    本来起好了英文名字“David Zhao”，只是可惜这个名字除了在课堂上用，其他的场合没有用过。看着这次写的又是“Zhao Wu, an intellectual property lawyer”，不知道老外是否明白“zhaohu"这个发音。
    下附《环球时报（英文版）》文章，英语好的同学不妨一读。
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When Victoria Harbor's famous big yellow duck arrived on May 2, few predicted the impact it would have on Hong Kong as well as the Chinese mainland. Although the inflatable bird will leave this coming Sunday, its legacy will remain with the many counterfeit rubber ducks, labeled "brothers and sisters" of the original artwork, which are dotted around the mainland.

The Rubber Duck, which was designed by Dutch artist Florentijn Hofman and has traveled to 12 cities in 10 countries, drew around 300,000 visitors in its first weekend in Hong Kong.

Soon after its popularity spread to the mainland, Yang Min, a toy factory owner in Dongguan, Guangdong Province, received dozens of calls ordering not only giant rubber ducks, but also various toys in its likeness.

Within three weeks more than 10 ducks of the same color, albeit in different sizes, appeared in cities across China. Copyright considerations appeared to be at most, an afterthought, as these copycat ducks propelled toy versions toward becoming the most popular Children's Day gift on China's biggest online shopping site Taobao.

Yang said that the copying of the duck was just how things work in China: becoming popular, getting copied and becoming cheap, before eventually being replaced by something else.

"Businessmen smell opportunity very fast, so the point is to seize the chance and grab profit as soon as we can," he said, adding those who stop to reflect tend to be left behind.

But for artists like Gu Zhenqing, an independent curator in Beijing, it is a sad thing, meaning that China may not be able to get rid of its reputation as the "king of the counterfeit goods," which in turn means it will be tough for the nation to foster its own pop art scene.

Fowl play for cash

Over 90 percent of the copycat ducks were made for commercial promotions. One duck, which appeared in an upscale residential area of Wuhan, was put there by real estate developer Country Garden. Another one, floating on the Qiantang River in Hangzhou, belonged to property developer China Vanke.

Similarly, in Shenzhen, a yellow duck sat in front of a shopping mall to attract customers.

Country Garden claimed they had been authorized to use Hofman's design, but Hofman denied this claim. "If people want the real duck, they have to come to me," he told The Wall Street Journal.

In an e-mailed response to the Global Times, Hofman's studio said Thursday they have no agreements with Chinese companies, but they are talking to some mainland cities about bringing the duck to those locations and will make a public statement soon.

Meanwhile, Yang's factory has sold more than 20,000 soft duck toys of various sizes wholesale. His clients ranged from wedding planning companies to kindergartens, where teachers give out yellow ducks as a Children's Day gifts.

"We couldn't think of any other things that would attract attention," a manager surnamed Li who works in a supermarket at Foshan - which has a duck next to it - told the Global Times, adding that they just wanted to create the right atmosphere before Children's Day.

 "The rubber duck is a yellow catalyst. Right now what it is showing is that there is a lack of trust in China, and that is an enormous problem," Hofman said, adding that he might take legal action.
Legal quagmire

Although the imitation ducks have been criticized by some media outlets like the Xinhua News Agency and the People's Daily, law experts said it was a complex problem in terms of legal procedures.

"The original designer's copyright was infringed when other designs resembled it and made people believe the two designs were related, but for such a commonly seen image like a duck, the court might take a while to define how exclusive Hofman's duck is," Zhao Wu, an intellectual property lawyer, told the Global Times Friday.
（星期五，知识产权律师赵虎告诉环球时报：如果其他人做出来的作品与作者的作品实质相似的话，就侵犯了作者的著作权。但是考虑到鸭子形象很普通的、到处都有，若到了法庭上法官会重点考虑索福曼的鸭子有什么特别之处。）

Long Ni, a Taobao toy shop owner, told the Global Times that she did not see any copyright problem selling the yellow duck, as she has been selling small rubber ducks for use in children's tubs in her shop since 2006, before Hofman's duck arrived on the scene.

Hofman's concept of a yellow duck traversing global oceans belongs to him, but the other ducks did not copy that idea, Zhao said.

Four other popular Taobao toy shops gave the Global Times similar reasons, adding that they had registered their trademarks for the rubber duck toys at the local bureaus of commerce.

Zhang Dongguang, another lawyer, said Hofman could use trademarks or patent rights to protect his work from being copied.

"But in order to be protected as an exclusive trademark or patent, the designer should first apply and get approval from the State Administration for Industry and Commerce," Zhang told the Global Times, adding that with so many factories and Taobao sellers copying the duck image, it would not be realistic to sue every one of them.
（但是如果想获得商标和专利方面的保护，设计者首先需要向中国大陆知识产权局和商标局提出申请并获得授权。”赵虎告诉环球时报，加上这么多的工厂制造“大黄鸭”、这么多的商家在淘宝上卖“大黄鸭”，每一个都起诉是不现实的。）

Tastes like duck

Gu, the curator of many modern art exhibitions, went to Hong Kong to see the giant Rubber Duck.

"It could bring many people, who loved toys and animals in their childhood, back to that state of mind and it also creates a contrast with the cold and hard skyscrapers in the background," Gu told the Global Times.

A spokesperson from AllRightsReserved, the somewhat ironically named company that invited the duck to come to Hong Kong, said that those copying the duck didn't understand its meaning. "We think all these counterfeit ducks came about mostly because of a lack of understanding of this artwork and the creative intentions behind it," the spokesperson said, adding that the artwork was based on innocence and optimism.

Although Hofman said he was not amused by China's giant ducks, the two-storey high rubber duck in Wuhan, which is much smaller than the original, still attracted many visitors.

"Copying has become a habit and people become lazy because they can rely on other's work that has proven successful. They gradually lose their creativity, with more people unconsciously accepting copied things," said Zhang Yiwu, a culture expert with Peking University.

Huang Rui, a pioneer of China's modern art scene, said the appreciation for such a simple duck reflected shallow tastes. "Many young people, attracted by such a simple piece, can not appreciate complicated art like opera, paintings or literature, due to a severe shortage of art education," Huang told the Global Times. "The worst thing is we don't even have artists creating designs to meet these simple needs. Instead, we only have profit-seeking businessmen good at following successful models," he said.

原文网址：http://www.globaltimes.cn/content/787732.shtml#.UbQvdthOOKE