Theatre production with Kinski quotes banned

The 6th Civil Senate of the Higher Regional Court of Cologne (OLG Cologne), which is responsible for copyright matters, prohibited an independent Cologne theatre production with Klaus Kinski quotations in its judgement of 31 July 2009. The defendant artists, a director and an actor from Cologne, must refrain from performing the play "Kinski - Wie ein Tier in einem Zoo" (Kinski - Like an Animal in a Zoo) and/or having it performed as long as certain texts and interview statements by Klaus Kinski are used in it. In addition, they must provide the heirs of Klaus Kinski with information about the income generated by the play and must compensate the damages resulting from the copyright infringement. The contrary judgement of the Regional Court of Cologne, which had dismissed the action, was amended accordingly (case number 6 U 52/09).

The play contains numerous, partly modified texts from the books "Jesus Christ Redeemer" and "Ich brauche Liebe" written by Klaus Kinski, the collection of poems "Fieber" written by him as well as statements made by Klaus Kinski in an interview with the magazine "Stern" and in a talk show of the WDR. The adopted passages make up about one third of the one-man play, which has a total length of about 50 minutes.

The ex-wife of Kinski, who died in 1991, Minhoi Laonic, and the actor's joint son Nikolai Kinski had claimed that the performance infringed Kinski's copyrights, which they held. The defendant artists had denied the accusations and argued that the use of the quotations was legitimate in the context of a free adaptation.

In contrast to the Regional Court, which had regarded the use and adaptation of the quotations as a permissible means of artistic creation, the judges of the Higher Regional Court assume an infringement of the copyright to Klaus Kinski's works, to which his ex-wife and his son are entitled as heirs. According to the content of the reasons for the judgement, the artists had made an exploitation of the work through the public performance of the play to which they had not been entitled. The exploitation was not permitted as a mere quotation within the meaning of the Copyright Act, since the passages in the play originating from Klaus Kinski had not been identified, but had been interwoven with the rest of the text and thus presented as their own intellectual creation. The play also did not constitute a permissible free adaptation of Klaus Kinski's work in the sense that the individuality of the protected older work faded in view of the special character and independence of the new work. In view of the only minor changes to the Kinski passages used, there could be no question of a free adaptation by the Cologne artists. The necessary distance from the original work was not achieved, the original remained easily recognisable. A new meaning was not added to Kinski's work by putting the quotations in a different order and context. Nor had any inner distance been created from the original work, for example by means of parody or by creating a new form of the work. When comparing Kinski's statements and the play, there were no such marked differences that an independent work with the necessary inner distance could be assumed. Contrary to the artists' assertion, the play did not show that the person of Klaus Kinski was merely used as an example. Rather, it conveyed the impression that it represented the unusual, unprecedented character of Klaus Kinski. Because of the copyright infringement, the artists are liable for damages, the amount of which has not yet been determined.

The Senate did not allow an appeal against the judgement; however, the defendant artists may file a non-admission appeal with the Federal Supreme Court within one month after service of the judgement.

 

Source: Press release of the Cologne Higher Regional Court

 

Goldberg Attorneys at Law

Lawyer Michael Ullrich LL.M. (Information Law)

Specialist lawyer for information technology law

E-mail: m.ullrich@goldberg.de

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