An IP Lawyer's Perspective on the KAWS of this Holiday's Fuss

Introduction

Brian Donnelly, better known as Kaws, is a world-renowned artist and sculptor. One of his most famous creations is his signature KAWS Companion, a “Micky Mouse-like figure with crosses for eyes and crossbones sticking out of its head”.[1] As part of his KAWS: HOLIDAY global tour, Mr Donnelly unveiled a massive 42-metre long inflatable sculpture on The Float @ Marina Bay – a public exhibition that was to run from 13 November 2021 to 21 November 2021. This colossal project was a collaboration between Kaws and the artist’s long time collaborator, the Hong Kong-based creative studio AllRightsReserved (“ARR”), and was supported by the Singapore Tourism Board.[2]


The Interim Injunction

The exhibition was cut short when ARR was served a court order. The Court order contained an interim injunction[3] that mandated the exhibition stop immediately and for all sales and distribution of related merchandise to be halted.[4]

The injunction was granted by the court in favour of the non-profit organisation, The Ryan Foundation (hereafter referred to as “Ryan”), against ARR, on the grounds that the exhibition was a “breach” (although we usually use the term “infringement”) of the foundation’s IP rights.[5]

The owner or exclusive licensee of an intellectual property right, such as copyright (which is likely the IP right in question for this case), has the right to control the, inter alia:

  1. reproduction of the original work;

  2. creation of derivative works based on the original;

  3. distribution of copies to the public;

  4. public performance of the work; and

  5. public display of the work.

It is an infringement of copyright to do any of the aforesaid matters without the permission (usually through a license) of the copyright owner.

An interim or interlocutory injunction is a prohibitive order of the court that is made pending the outcome of a trial or any other final determination of a dispute. An interim injunction is frequently sought for in matters of great urgency, where the applicant (Ryan) must restrain the defendant (ARR) even before the dispute is formally resolved by the Court or suffer great irreparable losses.

In determining whether an interim injunction ought to be granted, the court will consider whether there is a serious question to be tried (meaning the court will have to be satisfied that the claim is not frivolous and vexatious), or in other words, that there is at least some prospect of the applicant’s case succeeding at trial. The court will then balance the relative inconvenience between the parties in coming to a decision on whether or not to grant the interim injunction.

Typically, the applicant (Ryan), must prove that his losses would not be adequately compensated by monetary damages if the injunction is not granted but this must be weighed against the inconvenience caused to the defendant (ARR). The Court may grant the interim injunction subject to the plaintiff (Ryan) providing an undertaking that he would compensate the defendant (ARR) for damages incurred by the injunction if it is later found that the interim injunction was wrongly applied for.

Contrary to popular belief, it is not That® difficult to obtain an interim injunction, so long as a plaintiff (Ryan) furnishes an undertaking and perhaps provides some money to secure the payment of damages to the defendant (ARR). We qualify that we have not had sight of the Court papers, so we’re making some experienced assumptions of what might have caused the Court to grant the interim injunction. In any case, a defendant (ARR) may apply to Court to have the injunction quashed or dismissed - that is usually the more interesting fight.

The founder of the Ryan Foundation, Mr Ryan Su, gave a statement to CNA, claiming that the foundation had been in talks with ARR to bring the KAWS exhibition to Singapore, but that the deal did not materialise[6]. The Ryan Foundation applied for the court order when they found out that the exhibition was coming to Singapore anyway. Based on what we have read in the news, our guess is that Ryan applied for an interim injunction against ARR on the basis that he was the exclusive licensee of the (perhaps) public performance rights that subsist in the KAWS: HOLIDAY work.

On the other hand, ARR released a statement saying that: “In relation to the recent groundless allegations made by a third party who attempted to cause interruption to the KAWS: HOLIDAY SINGAPORE exhibition, our company is in the process of seeking urgent legal advice and will apply to the Court to challenge the prohibitory injunction order”.[7]

Kaws himself has also come out to say that he has “no contractual agreement with the Ryan Foundation. Their accusation is baseless”.[8] If Ryan cannot prove that there was a contractual agreement that furnishes them with the exclusive rights in Singapore, then it would be unlikely that Ryan has the right to stop ARR from exhibiting KAWS: HOLIDAY.

Contempt of Court

Subsequently, Ryan also initiated contempt of court proceedings against the organisers of the KAWS exhibition, presumably alleging an intentional breach of the interim injunction on the part of ARR for continuing the exhibition[9]. The grounds of the application were that there had been a breach of the above-mentioned court order to stop the exhibition. The court order was served on ARR at 4.20pm on 13 November, but ARR persisted in continuing with a private preview of the exhibition for invited social media influencers from 4.30pm to 7.30pm.

The Re-opening of the KAWS Exhibition

On 15 November 2021, the dispute was heard before District Judge Kow Keng Siong and he ordered for the interim injunction to be discharged[10]. Ryan was ordered to pay for the legal costs and the Court ordered for there to be an inquiry as to the damages suffered by ARR as a result of the injunction.

With the injunction lifted, ARR announced that the exhibition will be re-opened on 16 November to the public.

Conclusion

While this seems like the end of the saga, as IP lawyers, we are curious about the details relating to the interim injunction – for example, what alleged IP rights did Ryan claim to have, such that they were granted the interim injunction in the first place?

If your curiosity is piqued as well, then stay tuned, we will provide a more comprehensive analysis on this matter once all the relevant facts are made available to the public.

In the meantime, if you have any questions, or want to know more about how to protect your intellectual property rights, feel free to drop us an email at ask@that.legal. We are more than happy to help. #LetsTalkAboutYour Challenge

Mark TENG