By Birgit Clark writing for the IPkat
Birgit reports on an interesting court case dealing with potential copyright infringement through the use of direct quotes attributed to the (in)famous late actor Klaus Kinski in a theatre play based on episodes from the actor’s life. The late German actor Kinski was well-known for his for his explosive and unpredictable temperament and often played manic characters. According to news reports, over 30% of the text of the objectionable 50 minute one-person play “Kinski – Wie ein Tier in einem Zoo“ (in English: Kinski – Like an animal in a zoo) consists of direct Kinski quotes. Some of the quotes appear to have been artistically changed by the play’s author. Mr Kinski’s ex-wife Minhoi Loanic and his son Nikolai objected to this excessive use and filed a claim for copyright infringement at the Regional Court of Cologne. The defendants in the case, actor Hanno Dinger and director Stefan Krause, argued that their use of Kinski quotes in the play complied with German Copyright Law and was in itself protected by “freedom of art”, which Article 5(3) of the German Constitution protects as a basic human right. The defendants stated that they would, in principle, be willing to share potential profits with Kinski’s family should the play ever make any money. It appears that the play, which has already been on stage for 2 years, has so far only attracted an average of nine to twelve visitors per performance and has, so far, caused a financial loss of 3000-5000 Euros. “Mere enthusiasm” kept them going, the claimants stated in an interview. The claimants’ lawyer, Christine Danziger, was quoted as saying that the court action was not only about protecting copyright but also about potential negative financial consequences for the aspiring actor Nikolai Kinski, whose own stage show was apparently also based on his father’s memorable quotes and wisdom. However, Ms Danziger denied earlier reports which had suggested that Nikolai Kinski had sought damages of over 30,000 Euros claiming loss of profits. After hearing the case, the court on Wednesday suggested a settlement and proposed that the defendants could pay a certain percentage of the profits earned through the performance of the play to the claimants. This proposal was rejected by the claimants who refused to settle the case under on these conditions. The court’s decision is now expected for February 2009. Not surprisingly, the court has already announced that the use of the quotations in the play had to be assessed in the light of the constitutional guarantee of “freedom of art” under Article 5(3) of the German Constitution. In this respect the court reportedly referred to earlier precedents decided by the German Federal Constitutional Court ( Bundesverfassungsgericht).
This new Kat ventures the guess that the case will be decided in favour of the defendants, unless Mr Kinski Jnr. was able to prove substantial financial losses: The German Copyright Act (UrhG) clearly acknowledges the right to quote/cite (” Zitierfreiheit”) in its section 51 No. 2 UrhG. Given the defendants’ theatre performance clearly falls within the ambit of “freedom of art” Article 5(3), the provision(s) of the copyright act have to be interpreted in the light of the constitution. The German Federal Constitutional Court has previously decided that in cases where an artist quotes another artist, Section 51 No. 2 UrhG not only protects the property interests of the original author (and his legal successors) but also the artistic freedom of the “infringing” artist (see BVerfG-K, NJW 2001, 598 ” Grenzen der Zitierfreiheit”). The original author’s (and his legal successors) property rights in the quotations are equally protected as a basic human right under constitutional guarantee of ‘personal property’ in Article 14 of the German constitution. In such cases, the court has to carefully balance the conflicting rights. Only where there is a clear danger that the original author (or his legal successors) could suffer more than just “marginal financial losses”, will the “exploitation interest” of the original author prevail over the artistic expression of the second artist. Within the ambit of Article 5(3) of the Constitution, section 51 No. 2 UrhG serves as legal means of “artistic examination” and has to be interpreted liberally. Even though the outcome of this case appears rather predictable – based on the facts reported in the media – the case has certainly raised Nikolai Kinski’s profile and given the young actor some free publicity. The amount of media coverage dedicated to this case might even make some people decide to see the objectionable play.