Public Art and Private Rights: the ‘Female Oblation’ and Copyright

11 September 2018

Artist Ferdinand Cacnio poses with his "Uplift" statue installed at the UP Diliman campus in Q.C. | Photo from Mr. Cacnio's Facebook page

Works of art live and die on the basis of originality - for an artist, there’s no situation more harrowing than when one’s originality is put into question.

And in the age of the Internet, when information is constantly being shared at break-neck speed, originality is proving more and more difficult.

How does an artist justify his originality? Ferdinand Cacnio answers this simply: let the work speak for itself, for in it lies the artist’s style and sensibility.

Nearly a year ago, sculptor Ferdinand Cacnio, and his renowned nude statue “UPLift” stepped into the eye of a storm when the originality of his work was put in doubt, and underwent trial by social media.

“Those accusations of plagiarism following the unveiling of the statue after the [University of the Philippines batch] graduation, began from this meme comparing Ferdie’s work to that of the Dutch artist Elisabet Stienstra. It was put side by side, with a caption saying ‘Can I copy your homework?’. These comments were hurtful, and evolved into something malicious,” noted Bing Cacnio, Ferdinand Cacnio’s wife said in an interview, one year after the controversy unfolded.

Ferdinand Cacnio’s ‘UPlift’ - a statue of a nude female levitating over a pool of water, with arms outstretched - was accused of being a plagiarised work, with netizens saying the idea was lifted from the nude female sculptures of Dutch artist Elisabet Stienstra.

Elisabet Stienstra’s  ‘The Virgins of Apeldoorn’ feature three, separate, levitating nude females arranged to depict movement of a woman shifting in bed. The work was done in 2001 and displayed in a public park in Netherlands.

For the Cacnios , the idea of the form and composition of the statue was conceived in 2010, when Mr. Cacnio’s UP batch agreed to have the work of art to be their donation to the university.

Mr. Cacnio said even before the UPLift statue was made,  he was already crafting floating, nude sculptures since 2007 when he was invited to an exhibit with levitation as theme.

“I was invited in 2007 to an all-sculpture, group exhibit show in Asia, about levitation. My entry there were three nude, levitating females,” he explained.

In 2008, this was followed up with his participation in the University of the Philippines’ art show ,‘100 Nudes/100 Years’ for the UP Alumni Association’s centennial celebration wherein he submitted a larger-scale nude, levitating female.  

Taking stock of his portfolio would show he has done prior, similar works Mr. Cacnio said.

But given that Stienstra’s work predates his collection of nudes, Mr. Cacnio  asserts that even without his portfolio, the idea originated from him alone, and was not done out of research.

“I saw it in my mind first. I didn’t go to the internet and searched for inspiration. I saw it in my mind and I made it,” the sculptor reiterated.

In that statement alone lies the nuances of copyright.

According to the Intellectual Property Office of the Philippines (IPOPHL), an idea - an idea of a levitating female nude, an idea of a man mid-jump to dunk a basketball, the idea of anything - is not copyrightable.

By itself, the idea of a levitating, nude female is not protected by copyright. But when it is expressed - sculpted from brass, or metal, or stone, or expressed in whatever manner or form - that work is now given copyright protection.

“The IPOPHL is not making any judgment on this matter.  For the purposes of explaining the legal principle, we’re saying an idea, just the mere idea, is not copyrightable. No one owns the idea of the levitating person. But if it’s the expression of it, we have to be clear if it was substantially copied,” said the Intellectual Property Office of the Philippines.

Copyright infringement is quite different from plagiarism (the term invoked by news reports on the controversy). The latter is a different animal altogether and not defined by statute.

Blacks Law Dictionary defines plagiarism as the deliberate and knowing presentation of another person's original ideas or creative expressions as ones own. Plagiarism deals in both ideas and the manifestation of those ideas, or the expressions.

In copyright infringement, how that idea of a nude, levitating woman is expressed and fixed in a sculpture, or painting, or any medium, is important. One has to prove that the original work was substantially copied in

“To invoke copyright infringement under the Intellectual Property Code, one has to establish that the work is copyrightable, there was access to the copyrightable work, and there was substantial copying,” IPOPHL adds.

For Ferdie Cacnio, this isn’t a concern; The artist says his work expresses his point of view and artistic style, that differs from artist to artist.

“In my work, there’s a concept of lightness and movement which is ironic because the material is heavy and durable. My work depicts a a feeling of weightlessness, and, at the same time movement, as if they’re moving towards you. That’s what I introduced in my work, that’s my style,” Cacnio explained.

Cacnio, despite the naysayers, is putting emphasis on his approach as an artist: the quality and style that defines his work.

“I have a different [artistic] sensibility, that’s different from the sensibility of [Elisabet] Stienstra. Our body of work will spell the difference,” Cacnio ended.