Court of Appeal confirms plagiarism by Berlin painter Martin Eder. GÖRG successful for UK artist Daniel Conway.

Berlin, 31.10.2019

In cooperation with the international law firm Brown Rudnick LLP (Peter Wozny, Mark Lubbock), GÖRG (Dr. Oliver Spieker, Anne Schönfleisch) successfully represented UK artist Daniel Conway in preliminary injunction proceedings before the Berlin Regional Court (Case No. 15 O 102/19) and in the final instance before the Court of Appeal (Case No. 24 U 66/19).  The Berlin-based painter Martin Eder (represented by: Morrison Foerster) is accused of having extensively used the artwork "Scorched Earth" by the UK artist Daniel Conway in his work "The Unknowable”.

Daniel Conway became aware of Eder's work during a visit to Damien Hirst's Newport Street Gallery in London.  Initially Brown Rudnick LLP wrote to the Gallery in London which agreed (as a gesture of goodwill and without any admission) to take the work down from the internet locations it controls. Conway then decided to make a claim against Eder in Germany where the work "The Unknowable" was made. At that time, the discussion about whether Eder's work constituted a plagiarism was already being discussed in detail on the internet and in specialist circles. Eder admitted there that he had actually used the work in ignorance of its author to create his work. He rejected the out-of-court warning issued by GÖRG for Conway, among other things by denying authorship, whereupon Conway applied to the Berlin Regional Court for a temporary injunction, which was issued by way of a resolution without prior oral hearing. Eder first successfully filed an opposition against the order; the Berlin Regional Court overturned the interim injunction by judgment of 23 April 2019. It took the view that there was a lack of urgency and a violation of rights, among other things, because Eder could rely on the right to quote under the Copyright Act.

The Court of Appeal did not share this legal view in the oral hearing on 30 October 2019. The decision of the Berlin Regional Court was legally flawed. In particular, Conway’s copyright was infringed by the takeover of large parts of the "Scorched Earth" plant. Martin Eder could not make a resounding appeal to artistic freedom or to the right to quote. There was no quotation in the copyright sense. Accordingly, the Court of Appeal issued the sought interim injunction for the territory of the Federal Republic of Germany.

In preliminary injunction proceedings, this decision is final. If Martin Eder, who is represented by the law firm Morrison Foerster, does not recognise it as a final regulation equivalent to a legally binding title in the main action, the action would have to be brought in order to obtain a legally binding title in the main action – but probably before the same judges.

The press is already talking about a "precedent". It is quite rare for plagiarism proceedings to take place in court in the field of fine arts. It is also difficult to invoke the citation right under the Copyright Act because of the nature of a work of fine art - unlike linguistic works. It also concerns the application of more recent ECJ jurisprudence, which, however, has been issued for musical works (ECJ, legal matter C-476/17).

Advisors Daniel Conway

GÖRG Partnerschaft von Rechtsanwälten mbB
Dr. Oliver Spieker, Partner, IP/IT, Berlin
Anne Schönfleisch, LL.B., Associate, IP/IT, Berlin

Brown Rudnick LLP
Mark Lubbock, Partner, London
Peter Wozny, Associate, London

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