Stealing ideas, 2

While we were talking about unscrupulous people who steal ideas with impunity, I asked Atty Daniel Hofileña, expert in the Intellectual Property Code of the Philippines, about the fate of the HOCUS paintings. None of these are for sale and the next best thing to owning one is by acquiring the book -catalogues, hardbound and in four colors, which were launched during the opening of the exhibitions at the National Museum of Fine Arts. The first, HOCUS I, was held in 2017 and the second, Quadricula (HOCUS II), ended a month before the pandemic. What if an unethical painter were to use the book- catalogues, like that wily pearl merchant in Greenhill who steals Celia Molano’s designs from her jewelry book?

The HOCUS paintings have a unique trademark, the “Anghel de cuyacuy”, an indio Filipino angel in a white tunic with a typical squash hat, sitting on a taburete reading a book while jiggling (cuyacuy) a leg. None of the paintings bear the signatures of their intellectual creator, historian Saul Hofileña, Jr, and the painter of his ideas , Guy Custodio; but the “Anghel de Cuyacuy” is on each single one. What if a copycat painter uses this trademark on any of his own works? Atty. Daniel revealed that the trademark has been duly registered in the name of its intellectual author and that the copy right covers even the bocetos which bear the angel icon and the word “primero”.

Apparently, a registered trademark guarantees its owner additional protection because anyone else who uses it even on articles unrelated to the original work is liable. For instance, a person who uses the trademark of a well-known shoe brand may be held liable even if it is affixed on a hand bag or other articles of clothing.

Atty. Daniel emphasized that whoever holds the copyright of a book, a work of art, an invention, to name only a few items, has several economic rights and advantages. The owner of a copyright can reproduce a work or product or at least a substantial portion of it, as well as create a dramatization, translation, adaptation, abridgment, arrangement or other transformations and versions of the original (Section 177, IPC). No other person, without the consent of the copyright holder, can reproduce the original work or make any derivative such as alterations or variations. Violations constitute copyright infringements punishable with imprisonment of one to nine years and a fine ranging from Php. 50,000 to Php. 1,500,000, depending on the repetition of the offense (Sec. 217, IPC).

Furthermore, any person who benefits from said infringing activities or who induces, causes or materially contributes to the infringing conduct of another is also liable for copyright violation (Sec. 216, IPC). In other words, any person who commissions an infringing work is as guilty as the infringer himself.

Under the Intellectual Property Code, any person, who shall without the consent of the owner of the registered mark use in commerce any reproduction, counterfeit, copy of the counterfeit mark is liable for trademark infringement which is punishable with imprisonment from 2 to 5 years and a fine from Php. 50,000 to Php. 200,000.

The HOCUS I and Quadricula (HOCUS II) collections are manifestations of a virtually acrobatic, virtuoso feat between its intellectual creator, a historian who cannot paint, and a church conservator who can paint but is practically ignorant of the nuances and underlying sentiments of history. I have described this collaboration as part duet and part duel. What if it the duet crumbles into a duel?

Atty. Daniel told me not to worry because during this pandemic Guy Custodio has gone back to his former religious themes like vistas of heritage churches, ornate Bohol-type urnas with images of the Blessed Virgin and the saints, which he used to do before the HOCUS project. He has also made a written promise to historian- lawyer, Saul Hofileña, Jr, Daniel’s father, that he will not replicate the HOCUS paintings whether whole or in part without the consent of the intellectual creator of HOCUS. After all, it is the intellectual creator who owns the registered trademark of all the HOCUS collections and the angel icon.

While under “house arrest” the intellectual creator of HOCUS has finished writing two books in International Law, a subject he teaches at the San Beda University in Manila. He has begun writing yet another history book, the research of which he had completed before the pandemic. He said he had delivered to Custodio photo montages of images (Hofileña bocetos) for eleven new paintings that will eventually be part of a Hocus III exhibition. One of them is about the Manila Carnival, a 4 by 8 feet spectacle. . Hofileña swerves the historical narrative from Spanish colonial to American imperial.

For those who missed HOCUS I and Quadricula (HOCUS II) eleven of the paintings including the apocalyptic “La Pesadilla” (The Nightmare) were donated to the National Museum, with no strings attached, not even a tax rebate, but on the condition that they be permanently exhibited to the public. Six of the paintings have their own hallway on the fourth floor of the National Museum of Fine Arts. Five more will soon be displayed at one of the lobbies of National Museum of Anthropology. Saul Hofileña, Jr ‘s earthshaking ideas will be inevitably exposed to copycats. Will the Intellectual Property Code protect him from those who steal ideas?