Designer wins court fight over illuminated see-saws
Intellectual property case for ‘work abroad’
MONTREAL • Con or Sampson can display his illuminated see-saws anywhere in the world he pleases.
Quebec Superior Court has quashed an attempt by the Partenariat du Quartier des Spectacles, a municipal non-profit organization in charge of Montreal’s entertainment district, to stop Sampson from reproducing and exhibiting Impulse, the playful playground equipment he designed for the 2015-16 Luminothérapie festival.
Since they first went on display in Place des Festivals in December 2015, the award-winning see-saws, which glow and emit sounds when used, have been installed in 15 cities around the world, bringing $381,500 into the coffers of the Quartier des Spectacles. It paid Sampson a 10 per cent share, or $38,150.
But when Sampson, an architect and lighting designer, announced plans last December to build a new set of see-saws and exhibit them himself, the Quartier sought an interlocutory and a permanent injunction, filed on Feb. 15, to prevent his company, CS Design Inc., from doing so, claiming an exclusive right to exploit the luminous teeter-totters.
In a ruling issued July 13, judge Martin Castonguay denied the Quartier’s request for an interlocutory injunction, saying CS Design may create and market new versions of the see-saws since it retains intellectual property of the design under its contract.
Intellectual property refers to creations of the mind, like inventions, literary and artistic works, symbols and logos.
It encompasses copyrights, trademarks, and patents.
“The clauses of the contract between CS and the Partenariat could not be clearer,” says Castonguay, noting that while the Quartier owns the physical seesaws, it does not own the concept.
“There is no doubt that the Partenariat can do what it likes with the physical work that is Impulse. Does that result in taking away CS’s intellectual property rights? The Court is of the opinion that it does not,” he ruled.
The Quartier received $6.5 million in funding from the city this year to develop and promote the downtown entertainment district where the Montreal International Jazz Festival and other events are held.
In the injunction request, it said Impulse is, “by far, the Partenariat’s most soughtafter work abroad.”
Sampson created the work as the winning entry among 38 contenders in a competition to create a $300,000 art installation for the annual Luminothérapie festival from December 2015 to January 2016.
That January, the Quartier informed him it planned to exhibit the see-saws internationally through a private company, Creos Experts Conseil Inc. of St-Bruno-de-Montarville, and that it would pay him 10 per cent of the proceeds.
Creos was founded in February 2015 by Benoît Lemieux, who until October 2015 was the Quartier’s director of operations, and is owned and operated by him and his three sons.
The Quartier said in its injunction request that renting out artworks it has acquired from past festivals through Creos is a way of “promoting Canadian and Quebec artists.”
But Sampson said in an affidavit filed in court that if the Quartier’s goal was to promote local artists, preventing them from exhibiting their creations was a strange way to achieve it.
Since January, Sampson has installed the see-saws in London, England, Aberdeen, Scotland, and Dubai.
Two days before the installation in London in January, Pascale Daigle, the Quartier’s director of programming, contacted Sampson’s client there to say the see-saws were an illegal copy and that the Quartier might obtain an injunction to prevent them from being displayed.
Being prevented from deriving revenue from the see-saws would jeopardize the survival of his small business, Sampson said in the affidavit.
On Tuesday, he said the verdict was a relief after his stressful legal ordeal.
“We are very happy with the judgment, but appalled at the amount of wasted public funds,” he said, noting that the Quartier was represented by a high-profile legal firm.
“Blake, Cassels & Graydon do not work for nothing. This misguided and vindictive pursuit has taken up six months of our time: we would like nothing better than to get back to the business of creating and contributing positively,” Sampson said.