The Paris Bar in Berlin’s Kantstraße is a traditional meeting place for the arts and culture scene of the German capital and a true institution. Three paintings depicting this very bar have now become the subject of an interesting copyright decision by the Munich Regional Court. Specifically, it concerns the works “Paris Bar (Version 1-3)” and the question: who is the author of these paintings?
The Munich Regional Court has now answered this question in a copyright dispute between the artist Götz Valien and the estate of the artist Martin Kippenberger, who died in 1997. The estate holds the artist’s copyright and is also the publisher of the artist’s catalogue raisonné. The plaintiff is a freelance artist who has been living in Berlin since 1985. He filed a lawsuit requesting that the Martin Kippenberger estate be prohibited on pain of an administrative fine of up to €250,000 from using the “Paris Bar” pictures without naming Götz Valien as joint author. On 7 August 2023 (ref.: 42 O 7449/22), the court ruled in his favour, and ordered the estate to refrain from using the works “Paris Bar Version 1” (1992) and “Paris Bar Version 2” (1993) without naming the plaintiff as joint author. Götz Valien, on the other hand, was ordered to cease and desist from exhibiting the work “Paris Bar Version 3” and from claiming to be the sole author.
But how did this dispute come about in the first place?
In 1991, an exhibition entitled “Metropolis” was staged at the Martin-Gropius-Bau in Berlin to give an overview of the contemporary international art scene. Martin Kippenberger had not been invited to this exhibition and, in protest, organised a counter-exhibition as a “salon des refusés” in the Paris Bar – conceived as a temporary event. In order to record the posterity of the moment, Kippenberger had his installation captured by the photographer Gunter Lepkowski. He then commissioned a Berlin advertising agency to create a large-format painting on canvas depicting the scene on the photograph. Götz Valien had been working for the company as an advertising poster painter since 1992. However, the identity of the company’s employees was unknown to Kippenberger. Valien produced the desired painting in 1992, and another one six months later. The first version, which Valien signed in two places, was exhibited in the Paris Bar until 2004. The second version of the painting shows the Paris Bar with its new interior design, in which the work “Paris Bar Version 1” was on display. Even while Valien was painting the second picture, he had no contact with Kippenberger. It was not until seventeen years later, when the painting “Paris Bar Version 1” was auctioned at Christie’s, that Valien learned that his fellow artist Kippenberger had commissioned the work. The painting was described at auction as follows: “Martin Kippenberger (1953-1997) Paris Bar estimate 800,000 – 1,200,000 British pounds“. The work was ultimately auctioned for £2,281,250. The painting “Paris Bar Version 2” was sold in 2007 via Phillips auction house in London. Since 2021, it has been on display at the Bourse de Commerce, with “Kippenberger” designated as the author.
During the court proceedings, the defendant claimed that Kippenberger’s approach to the work “Paris Bar Version 1” could be interpreted as a continuation of the concept from Kippenberger’s series of works “Dear painter, paint for me” (1981). Martin Kippenberger’s own authorship of the works in this series corresponded to the prevailing understanding of art, according to which an artist did not necessarily have to apply his own hands to his works. According to the defendant, Kippenberger had thus paradigmatically clarified the separation between intellectual authorship and artistic realisation with this concept.
Moreover, Kippenberger was to be regarded as the sole author since he alone had made a creative contribution to the works. Martin Kippenberger had meticulously decided all relevant design issues on his own. He had arranged the motif in the Paris Bar; in particular, selecting the pictures from his personal collection and choosing how to arrange them.
In its decision, the Munich Regional Court first established that the pictures “Paris Bar Version 1” and “Paris Bar Version 2” are both artistic works. According to the case law of the European Court of Justice, two conditions have to be met cumulatively for something to be classified as an ‘artistic work’: first, the object in question must be an original in the sense that it constitutes the intellectual creation of its author (ECJ GRUR 2019, 73, para. 36 – Levola Hengelo; ECJ GRUR 2019, 1185, para. 29 – Cofemel). A canvas is an original if it reflects the personality of the author by expressing his free creative decisions. This could not be assumed if the creation of a picture was determined by technical considerations, rules or other constraints which left no room for the exercise of artistic freedom. Secondly, the classification as a work is reserved for elements which express such intellectual creativity (ECJ GRUR 2019, 1185, para. 29 – Cofemel; ECJ GRUR 2020, 736, para. 22 – Brompton Bicycle).
The chamber did not obtain expert assessment on the protectability as a work but decided on the basis of its own expertise. Notwithstanding Kippenberger’s initiative and participation, the court stated that the plaintiff had made his own creative contribution to creating the works “Paris Bar Version 1” and “Paris Bar Version 2“, which justified his designation as joint author. Valien had possessed, and used, sufficient individual leeway for his own creative work. Martin Kippenberger had undoubtedly provided the ideas and initiated the works “Paris Bar Version 1” and “Paris Bar Version 2“. He had also made his own creative contribution by specifying and designing the motifs of the paintings, selecting their size and co-determining the style of the paintings by commissioning the company.
However, in the court’s view, the plaintiff had room to make his own decisions in the pictorial implementation. With the painting “Paris Bar Version 1“, he had created an inviting, lively and warm atmosphere of the exhibition in the Paris Bar, which was not to be found in the photo-graphic model of the exhibition and had not been given to him by Kippenberger. The famous bar appears darker, cooler and more deserted on the photographic model. The second version of the painting also bore the plaintiff’s individual handwriting. Neither did any constraints (technical or otherwise), nor the photorealistic style reduce or eliminate the room for artistic freedom. The court further found that, due to the indisputably affixed signatures, the presumption of authorship under section 10 of the German Act on Copyright and Related Rights spoke in favour of Valien’s joint authorship. Pursuant to this provision, the person designated as the author on the copies of a published work of fine arts is deemed to be the author until proven otherwise.
This ruling is of enormous importance for the recognition of artistic work. It confirms that the actual creators are entitled to recognition of their authorship. Thus, it clearly manifests the legal situation in Germany: authors are entitled to an essentially indispensable right to recognition of authorship – also joint authorship. It is also interesting to note that the accepted view in art history, according to which an artist does not necessarily have to produce his or her work with his or her own hand, cannot simply be applied to an assessment that is governed by copyright law. The Munich Regional Court has also clarified that the concept of authorship and artistic creation in the art-historical sense is to be interpreted quite differently from the concept in the legal sense. Martin Kippenberger’s estate has announced that it will appeal against the judgment.
By Adrienne Bauer, Advant Beiten Law Firm