Who owns the city’s see-saws?
Quartier des spectacles, design firm in legal row over replication rights
In December 2015, visitors to the Luminothérapie festival marvelled over the 30 see-saws in Place des Festivals that lit up and made music when in use.
Now the award-winning art installation, titled Impulse, is at the centre of a legal dispute between the city agency that commissioned it and its creator.
Wednesday, Quebec Superior Court will hear a request for an interlocutory and permanent injunction by the Partenariat du Quartier des Spectacles against CS Design Inc., owned by architect and lighting designer Conor Sampson.
The Quartier des spectacles, a non-profit organization that received $6.5 million in funding from the city this year to develop and promote the entertainment district, wants to prevent CS Design from creating new versions of its illuminated see-saws because it claims the exclusive right to market the teeter-totters internationally. In its injunction request, the Quartier explains that since January 2016, it has developed a business to rent out public artworks around the world through a private company, Creos Experts Conseil Inc.
Impulse is, “by far, the Partenariat’s most sought-after work abroad” and, through Creos, it has “actively exploited Impulse around the world and has presented it in approximately 15 large cities in Canada, the United States and the rest of the world,” the injunction request reveals.
Incorporated Feb. 24, 2015, and located in St-Bruno-de-Montarville, Creos is owned and operated by Benoît Lemieux and his three sons, Alexandre, Sébastien and Marc-Antoine, according to Revenue Québec’s business registry and the company ’s website, which lists nine employees, including the four members of the Lemieux family.
Until October 2015, Benoît Lemieux was director of operations for the Quartier des spectacles, according to his LinkedIn page.
Since that date, he has been senior consultant at Creos, whose listing on Zoominfo.com says the company has $800,000 in revenue and four employees.
In 2015, Lemieux sat on the jury that chose Impulse among 38 entries in a contest to create an interactive public art installation for the 2015-16 Luminothérapie competition, according to the Quartier des spectacles website. The budget was $300,000, of which $50,000 was for nine video projections.
The work has won four other awards from organizations, including the Royal Architecture Institute of Canada.
The Quartier claims in the injunction request that Impulse’s “notoriety is due in large part to the visibility efforts undertaken by the Partenariat since 2015” and that renting out artworks it has acquired from past festivals is a way of “promoting Canadian and Quebec artists.”
But Sampson suggests in the affidavit that if the Quartier’s goal is to promote local artists, thwarting them from commercializing their creations is an odd way to show it.
“It is unclear to me how its mandate is furthered by strangling the commercial interests of promising Quebec artists by preventing them from exploiting their intellectual property abroad,” he says.
Sampson, whose company partnered with Lateral Office, a Toronto design firm, to create Impulse, says in the affidavit that the $300,000 the Quartier provided to create and install the artwork, and keep it free of snow during the Luminothérapie festival, was not enough to cover cost overruns, which CS Design absorbed.
He says granting the injunction would jeopardize the survival of his business, which depends on international revenues from new versions of the see-saws “to remain solvent, repay its debts, and, later still, to invest in developing new works of public art.”
Under its 2015 contract with the Quartier des spectacles, CS Design retains intellectual property of the artwork, while the Quartier owns the physical work and an unlimited right to exploit it, whether by renting, selling, making a video of it or developing derivative products — just as long as it doesn’t replicate it without written permission from CS Design.
Intellectual property refers to creations of the mind, like inventions, literary and artistic works, symbols and logos, according to the World Intellectual Property Organization.
Sampson says the only limitation the contract places on his ability to produce new see-saws is a noncompete clause saying CS Design may not present a work inspired by or identical to Impulse in Quebec or Ontario for three years after the signature of the contract in October 2015.
But the Quartier des spectacles says in the injunction request that Impulse is a unique work and that CS Design has harmed its value by exhibiting new versions of the seesaws internationally.
It is also seeking to force CS Design to turn over dies used to manufacture new parts for the seesaws so that it can replace them.
In December 2017, Sampson informed the Quartier des Spectacles that his company intended to display a set of redesigned seesaws in London, England, in January.
Two days before the exhibition started, Pascale Daigle, director of programming at the Quartier des Spectacles, emailed and called the organization in London to say the see-saws were an illegal copy and that the Quartier might take out an injunction to prevent their display.
In February, CS Design exhibited them in Aberdeen, Scotland, and a third exhibition was held in Dubai.
On Feb. 12, Sampson sent the Quartier a legal notice demanding it stop exhibiting Impulse because of safety concerns, and that it stop interfering with CS Design’s business ventures.
Sampson says in the affidavit that each exhibition is a new work of art that relates to its setting in a unique way.
Serial art — of which examples are Andy Warhol’s series of Campbell’s soup cans or minimalist sculptures by artists like Richard Serra or Donald Judd — is about the spatial relationships between components of a work and between them and the surrounding environment, he says.
Impulse was designed specifically to be displayed on Place des Festivals for the 2015-16 Luminothérapie festival and its relationship to its setting was a key reason it was chosen, he notes.
The jury that chose the work praised the way “it matches the scale of the Place des Festivals and fills the space well. (…) There is a beautiful dialogue between the large, white, luminous see-saws and the mega-structures of the Place,” the art jury said to explain its choice of Impulse.
Sampson says in the affidavit that Daigle first informed him of the plans to tour Impulse on Jan. 20, 2016.
Sampson says in the affidavit that he emailed Daigle the next day, expressing concern over whether the see-saws could withstand the wear and tear of long-term use and of being transported, assembled and disassembled, since they had only been designed to be used during the two-month Luminothérapie festival.
He adds that he subsequently raised the safety concerns repeatedly with the Quartier.
There’s a risk the aluminum beams used in the see-saws could eventually fail, “dropping users from a height of one metre onto their back or head,” or that the top layer of the polycarbonate exterior could crack, which Sampson says had already begun to happen when the see-saws were exhibited in Chicago in March 2017, he says in the affidavit.
“As a member of the Ordre des Architectes du Québec, I am professionally obligated to warn clients if my work poses any possible danger to public safety. CS Design is also concerned about its liability and its professional reputation,” he says.
In June 2016, Daigle confirmed by letter that the Quartier was planning “new actions” to “make the works in its collection, including Impulse, shine more brightly.”
She said Creos director Benôit Lemieux would be “the one-stop shop towards whom all requests to rent artworks, no matter where they come from, should be addressed.”
The letter informed CS Design it would receive a 10-per-cent share of the rental income.
Sampson also says Creos had not been consulting CS Design and Lateral Office about how the works were being presented and that it repeatedly failed to credit CS Design and Lateral Office when exhibiting them. Media coverage in some of the cities where the see-saws were displayed identified Creos as creator of them, he notes.
The Quartier says in the injunction request that even though it “is a non-profit organization, it derives a certain amount of revenue from rental of the works in its portfolio.”
However, it does not reveal how much revenue it and Creos have derived from touring the artwork around the world.
Because it is a non-profit organization, created by the city in 2003, the Quartier des spectacles is not obliged to make its financial statements public. However, it must submit them annually to the city ’s auditor, said Michel Forget, Montreal’s deputy inspector general, responsible for inspections and investigations.
On Feb. 14, the city announced $6.5 million in funding to the Quartier for 2018. That includes $4 million to develop and promote the entertainment district as a cultural destination, organize free programming, and implement a lighting plan and digital lab.
Another $2.5 million will cover operating costs of festivals and other outdoor events, maintenance of public spaces and completion of the $67.1-million Esplanade Clark, a public square on the west side of Clark St.
Last month, access-to-information minister Kathleen Weil tabled a long-awaited bill in the Quebec National Assembly that would submit non-profit organizations that receive at least 50 per cent of their financing from cities, like the Quartier des spectacles, to access-to-information rules covering government departments and public bodies.
However, because it was tabled so close to the end of the session, it is expected to die on the order paper.
It is unclear to me how its mandate is furthered by strangling the commercial interests of promising Quebec artists.