Hamburg Regional Court process
Video about the crowdfunding campaign
Update October 28, 2023:
The oral hearing took place on October 27, 2023 at 1 p.m. at the Hamburg Regional Court, meeting room B 335
The current oral hearing at the regional court was about the question of whether the bottle cap picture that depicts the singer Lemmy Kilmister in artistic form is "art" and should therefore be classified as a "pastiche" and therefore does not represent a merchandising product. The law firm "Gutsch und Schlegel" denies that the Lemmy KIlmister crown cap artwork is "art" and the Hamburg regional court could not/did not want to make a judgment on this! Presumably, because it would be a landmark ruling and only defined the injunction as permanent. It now goes to the Hamburg Higher Regional Court for further clarification and, if necessary, judgment.
On August 16, 2023, Kronkorkenkunst received from the law firm Gutsch und Schlegel (Hamburg), representing Global Merchandising Services Ltd. (London) a cease and desist declaration to be signed. The case concerns the accusation of selling merchandising products with the name "Lemmy Kilmister" and the portrait of Lemmy without appropriate licensing from the band manager of the band Motorhead "Todd Sindermann". The artwork of Lemmy KIlmister, the singer of the band Motorhead, who died in 2015, created by Kronkorknkunst in 2018, was offered for sale twice on Etsy as a canvas print in size 20cm x 20cm - online for just 2 weeks and not even until the cease-and-desist declaration was received sold.. What is required is the cease and desist, information and destruction, as well as compensation for damages and expenses from RA Gutsch and Schlegel (Hamburg) to Kronkorkenkunst Cologne.
Specifically, it is about the following picture - presented in 2018 during an exhibition at the night of art in Leverkusen - created the Lemmy KIlmister art using by crown caps
Leverkusener Anzeiger / 08.10.2018
According to Gutsch and Schlegel, they represent the world's largest exploiter of merchandising rights in the music and entertainment industry. Among other things, Global Merchandising Services Ltd is responsible for the asset rights to the name and likeness of the world-famous and deceased singer Ian Frasier Kilmister, former font man of the group Motorhead. In addition to cease and desist, information and destruction, as well as the assertion of damages and reimbursement of expenses were demanded. As an artist, I am accused of selling merchandising items without the appropriate license.
I have decided not to agree to this cease and desist declaration and to reject the demands because, according to my legal opinion, I am legally active as an artist within the meaning of Section 51a of the Copyright Act and enjoy full artistic freedom here. As of August 25, 2023, the alleged claim was asserted at the Hamburg Regional Court by the lawyers Gutsch and Schlegel in the form of an interim injunction.
The Hamburg Regional Court decided, entirely without an oral hearing, purely based on the file, in its decision of September 14, 2023 (AZ: 324 O 357/23) that my works only pursue commercial goals. The chamber explains, among other things, in its reasons for the judgment that the chamber does not would have to examine more closely whether my works can be classified as art. Can this be?? However, as an artist and as a pastiche, I refer to the copyright reform of 2021: the new § 51a UrhG was created, which uses this term pastiche. The new paragraph 51a covers not only pastiches, but also caricatures and parodies. It says here: “The reproduction, distribution and public reproduction of a published work for the purpose of caricature, parody and pastiche is permitted.“ (https://irights.info/artikel/wie-der-pastiche-ins-urheberrecht-kam-und-was-er-fuer-das-kreative-schaffen-bedeutet/31105).
So it's going into the next round: On September 29, 2023, an objection against the decision was filed with the Hamburg Regional Court.
In order to clarify whether a work of art represents a pastiche and can be classified according to Section 51a of the Copyright Act, the criteria of internal distance and artistic discussion are crucial for the assessment. The inner decency can therefore take the form of a homage or appreciative engagement with the pre-existing work, as in the case of the Lemmy Kilmister picture through my work of art. The work of art gives rise to a different meaning in the artistic discussion and has a noticeably different expressive content than the pre-existing work.
According to the justification for the law, a pastiche is based on pre-existing works. It says: “The legally permitted uses according to § 51a UrhG-E have in common that they are reminiscent of one or more pre-existing works. [...] However, the style as such is not protected by copyright. In this respect, there is no need for any copyright restrictions. Therefore, in the context of Article 5 Paragraph 3 Letter k of the InfoSoc Directive, the pastiche fundamentally allows, in addition to the imitation of the style, the copyright-relevant adoption of third-party works or parts of works.” (BT-Drs. 19/27426, pp. 90 and 91.) Pastiche could therefore be defined as “exceptionally permitted use of third-party rights without licensing, while maintaining an internal distance from the pre-existing work and in the form of an artistic examination of the pre-existing work”. (https://irights.info/artikel/wie-der-pastiche-ins-urheberrecht-kam-und-was-er-fuer-das-kreative-schaffen-bedeutet/31105).
“The decisive factor for the pastiche is that the user engages creatively with templates: “The pastiche must,” according to the draft, “reveal an engagement with the pre-existing work or another reference object. “When does such a “dispute” occur? This point is not precisely defined, but from the art and music history of pastiche and pasticcio it can be deduced that recognition, appreciation or even veneration of the work used should be recognizable. This in turn means: It must be obvious that the pastiche is based on another work or person refers to it, i.e. has a template. You shouldn't give the impression that you are the author of the original. Pastiche and original artwork should not be confused with each other.” (https://irights.info/artikel/wie-der-pastiche-ins-urheberrecht-kam-und-was-er-fuer-das-kreative-schaffen-bedeutet/31105).
A detailed report on: THE PASTICHE IN COPYRIGHT - REPORT ON A COPYRIGHT-SPECIFIC DEFINITION OF THE TERM PASTICHE ACCORDING TO §51A UrhG - Dr. jur Till Kreutzer September 5, 2022 was created by freiheitsrechte.org and can be found at (Gutachten bei freiheitsrechte.org) can be viewed for free use.
However, the negotiation costs for artistic freedom cannot be borne by me alone and will probably amount to well over 10,000 euros. This is also the goal of the crowdfunding campaign, which has set itself the task of achieving a groundbreaking verdict in the context of art freedom. Bottle cap art needs the money for legal proceedings. One is to advance the court costs and to cover your own legal representation.
What happens to the donations if bottle cap art wins?
Kronkorkenkunst does not want to enrich itself personally and in the event of a groundbreaking judgment for crown cap art and in favor of artistic freedom, all donated amounts (minus the administration fees) will be handed over to the parents' initiative of children with cancer St. Augustin e.V. for their extremely important work.
Please support Kronkorkenkunst in this judicial clarification of copyright in artistic creation, which is important for the art world and all artists, and in achieving a groundbreaking judgment that can offer all artists legal security.
Gerichtsverlauf (wird laufend aktualisiert)
29.09.2023: Objection to the Hamburg Regional Court against the decision of September 14, 2023 (AZ: 324 O 357/23)
14.09.2023: Hamburg Regional Court decision (AZ: 324 O 357/23) against crown cap art
08.09.2023: Timely statement from Attorney KBM Legal (Cologne) to the Hamburg Regional Court on the letter dated September 5th, 2023 from Attorney Gutsch and Schlegel (Hamburg) within 3 working days
05.09.2023: Statement by Attorney Gutsch and Schlegel (Hamburg) to the Hamburg Regional Court on the letter dated August 31, 2023 from KBM Legal (Cologne) within 3 working days
31.08.2023: Fristgerechte Stellungnahme durch RA KBM Legal (Köln) in Vertretung für Kronkorkenkunst an das Landgericht Hamburg zum Antrag auf Erlass einer einstweiligen Verfügung
28.08.2023: Kronkorkenkunst is awarded by the Hamburg Regional Court in the interim injunction proceedings against Global Merchandising Service Ltd ./. Leuschner received the application for an interim injunction dated August 25, 2023 from the respondent's representative with the opportunity to comment within 3 working days
25.08.2023: Application for an interim injunction by Attorney Gutsch and Schlegel (Hamburg) to the Hamburg Regional Court
22.08.2023: Timely reply letter to Gutsch and Schlegel (Hamburg) from KBM Legal (Cologne - legal representative Kronkorkenkunst) with reference to a lack of legal authorization, a lack of legal infringement and a lack of a claim for damages
16.08.2023: Receipt of cease and desist, information and destruction, as well as compensation for damages and expenses from RA Gutsch and Schlegel (Hamburg) to Kronkorkenkunst Cologne