[Guest post] Craftsman vs visionary – the Kippenberger authorship dilemma in copyright

Is authorship about vision or penmanship? The IPKat is very happy to host the following blog post by Despoina Dimitrakopoulou and Simon Fritsch, addressing this eternal copyright question from the perspective of a German art and legal story. Here's what they write:

Craftsman vs visionary – the Kippenberger authorship dilemma in copyright

by Despoina Dimitrakopoulou, LLM and Simon Fritsch, LLM

A German bar with a French name has been the talk of IP and art enthusiasts for the past weeks, raising the eternal question- what makes an author: is it the vision or the craftsmanship?

The story

Paris Bar (Version 1)

The famous “Paris Bar”, a popular meeting place for artists in Berlin, is also the place where artist Martin Kippenberger used to wine and dine. This place had such an impact on Kippenberger that he chose to make it the object of his paintings, not only once, but twice: And both times made art history!

In 1981, Kippenberger held the revolutionary exhibition “Lieber Maler, male mir” (“Dear painter, paint for me”). Wanting to make a statement, he hired an advertising company which hand-painted advertisement tabloids for cinemas. Kippenberger instructed it to paint a variety of motifs and also portray the interior of the “Paris Bar”, that included the paintings hanging at his- also full of statement – “Salon des Refusés”.

The man who put the interior of the Paris Bar on canvas was young painter Götz Valien, thus creating the painting “Paris Bar, Version 1”. A year later, Kippenberger contracted Valien again to paint once more the “Paris Bar'', this time asking for a painting-in-a-painting effect, and instructed the creation of what came to be (very creatively named) “Paris Bar, Version 2”, showing “Paris Bar, Version 1” hanging – where else – in the Paris Bar. Martin Kippenberger was cited, criticized and worshiped for creating something special.

Götz Valien on the other hand was named nowhere.

Paris bar, Version 2

The aftermath of Kippenberger’s infamous “Paris Bar” includes various new paintings by other artists citing the two “Paris Bar” versions.

Left: PARIS BAR (2021) by Johanna Dumet

Right: Paris Bar by Daniel Richter PHOTO BY GERMAN PALOMEQUE 

Whereas these versions bear more or less noticeable differences (in style, colour grading or the depicted paintings that hang from the depicted wall) there is one subsequent version that is not at all different from “Paris Bar, Version 1”. On the contrary, that version looks exactly the same as the original “Paris Bar, Version 1”. That precise replica is called “Paris Bar” (Variante 3), and behind its creation there is no one else than Götz Valien – the same man that painted the original “Paris Bar” Version 1!

Is this exact replica of Kippenberger´s painting an infringement of his rights, if the person that painted it is the same that painted the original?

Paris Bar (Variante 3)

The legal issue

The relationship between art, artists and their “helping hands” is one that goes down to the very roots of copyright law, and the beginning of art itself. Great artists of the past, like Da Vinci, had their pupils working on their creations – still unknown to what extent – but also great artists of the present, like Jeff Koons, have a “bit of help”, with “armies” of assistants working on their art, also usually remaining unnamed or unnoticed, much like Valien was for the painting of Kippenberger.

The legal issue can be broken down to one single question: who is the author of such copyright works, the visionary or the craftsman?

The Berne Convention does not define the term “author” but leaves the definition up to its member states. The TRIPS Agreement (Article 9(2)), on the other hand, insists on the necessary fixation of an idea as a prerequisite of copyright protection, suggesting that the one “fixating” the idea could be the author.

If the Kippenberger conundrum were taking place in the US, things could be simpler. According to US copyright law, if a work is made for hire, the employer or client for whom the work was created is the author (§ 201 para b US Copyright Act). Therefore, it would only matter that Kippenberger hired Valien: in the US he would be the clear and only author.

However, given our case´s German context, we should turn to German law for answers. Section 7 of the German Copyright Law (“UrhG”) defines the term “author” as “the creator of the work”, and Section 2 (2) UrhG states that works can only be “personal intellectual creations”.

But who is the actual “creator” of the work?

The visionary- the one who came up with the idea for a work- will not be entitled to copyright if he or she remains a “client”, hires or orders the creation of a work, or is simply the source of inspiration. In the “Rosaroter Elefant” case, the German Federal Court ruled that placing a generic order for a “picture of a pink elephant” did not mean that there was enough creative effort made by those who placed that order, and the copyright would be owned by the graphic designer.

However, when the specifications of an order or commission are so exact that they, in a sense, predetermine the work, rendering the person performing it a mere assistant, that is “the necessary hand”, that “hand” will not be regarded as an author. As long as the assistant adheres to the template provided by those who hired them, and does not contribute anything of their own creative input, that assistant is not an author.

Exactly so, for the Higher Regional Court in Cologne, only the sculptor is the author of a bronze sculpture, not the, albeit necessary, metal caster. The same applies to the modeller who executes another person's design, as ruled by the Higher Regional Court Hamm, in the case of a designer who gave sketches for a Bobblehead dog which were so exact that left no room for the executors´ own creativity – and therefore no copyright for the production company.

It seems like it all boils down to how much intellectual input, instead of just skill, is put in the work by the visionary and/or the craftsman. If someone solely follows instructions, with no room left to express their own creativity, there won't be any room for copyright to be attributed to them either. If, however, in applying and following said instructions, there is still room for creativity, copyright shall be attributable to them too, as a joint author. Nevertheless, in the aforementioned cases, the ones giving instructions and also being attributed with copyright, always had a personally created initial work at hand: some sort of sketch or first draft, that left little or no room for anyone else´s creativity.

But if there is a fixation of the idea already in the form of a photograph or sketch, would the concept of adaptation be relevant? The right of adaptation is not generally harmonized (In the EU it is harmonized on a limited basis e.g., for software and databases. Meows on the right of adaptation in the EU here). In Germany, however, Section 3 UrhG grants copyright to adaptations. Nevertheless, for German law, authorship requires personal creative contribution to acquire copyright for an adaptation, under Section 3 UrhG. Roughly said: If the pre-existing work (i.e. the photograph/sketch) is to be treated as instructions, like a manual, the created work is no adaptation but the end result of the conceptualized idea (much like an architectural design and a finished house). However, if the creator of the end result interprets the pre-existing base-work creatively, then they will be eligible to claim copyright.

In sum: the visionary would not be attributed copyright, unless they put their own craftsmanship in practice - by fixating their idea to such an extent that leaves no room for different interpretation but only as specific instructions.

The same case that never became one: John Baldessari’s photograph, painted on his order by Hildegard Reiner, still being attributed to Baldessari (here)

All that being said, it remains hard to give an answer to the Kippenberger- Valien dilemma. On February 16, 2022, the HaL gallery, displaying Valien’s “Paris Bar (Version 3)”, held a small conference for lawyers and art historians to discuss both sides of the case. The discussion ended up circling around how much or how little room was left for Valien´s creative input, by weighing on how strict Kippenberger's directions were. Interestingly, neither side disputed the fact that Valien had copied the painting from a photograph, given to him by Kippenberger, to use as a template. Whether that photograph would reach a considerable creative threshold for Kippenberger, like in the Bobblehead dog case, still remains questionable. It was also alleged that Valien used an actual projection of the photograph on the canvas in order to paint it, therefore leaving no room for him to be creative. Furthermore, it was speculated that the colour scheme would be set by the available colours that the company, where Valien worked and painted, had already chosen. The opposite side, however, claimed that Valien took his own pictures of the Paris Bar and used them as references, and also chose lighting and colours by himself.

The Paris Bar in Kantstraße 152, Berlin (photograph: Despoina Dimitrakopoulou & Simon Fritsch)

So far the Kippenberger dilemma remains theoretical, as no case has yet been brought to court, although Kippenberger´s estate reserves the right to legal action. It is most probable that a drink in the Paris Bar will be needed after all to crack the eternal enigma: who is the author, the visionary or the craftsman?