written by Cemal A. Celik
What actually happens when a commissioned painter becomes a co-author of a work of art?
Art is often created in dialog when the ideas and designs of several people intertwine. But who can ultimately call themselves the author when an artist commissions a commissioned painter to realize an original?
The Munich Regional Court gave a clear answer in the case of the “Paris Bar” paintings: even someone who “only” carries out a commission can be a co-author, provided they use their creative freedom.
The “Paris Bar” case
In 1992, the German artist Martin Kippenberger (1953-1997) commissioned a Berlin advertising poster painting company to produce a painting of his temporary exhibition at the Paris Bar in Berlin.
The commissioned painter Götz Valien produced three versions based on a photo that Kippenberger had taken himself:
- Version 1 (1992): A photorealistic large-format painting from the exhibition, which hung in the Paris Bar until 2004.
- Version 2 (1993): A “picture-within-a-picture” showing version 1 on the wall of the Paris Bar.
- Version 3 (1993): A slightly modified reinterpretation that Valien developed independently.
After Kippenberger’s death, Valien was not named as the author either in the official catalog raisonné or at auction (including at Christie’s for over 2.6 million euros). In 2022, Valien therefore sued the Munich I Regional Court for recognition of his co-authorship of the first two versions. Kippenberger’s executor disputed this and argued that Valien had only worked as an executing “craftsman”.
But what exactly is a co-author?
Co-authorship within the meaning of Section 8 (1) UrhG et seq. exists when several persons jointly create a work and their contributions are inseparably linked. This presupposes that each person makes an original creative contribution in the form of a design, Section 2 (2) UrhG.
For this purpose, the work must have an individual “artistic signature” that goes beyond simple craftsmanship, i.e. it must reveal a personal intellectual creation. As a rule, a spark of one’s own creative work is sufficient for this.
All copyrights follow from co-authorship. In particular, this results in the right to recognition of authorship pursuant to Section 13 sentence 1 UrhG and, associated with this, the right to provide the work with a corresponding copyright designation, i.e. to be named, Section 13 sentence 2 UrhG.
In the “Paris Bar” case, this essentially involved two questions:
Firstly, was Kippenberger’s concept alone sufficient for authorship, or was this to be assessed differently due to Valien’s own creative contribution?
Although Kippenberger provided the idea and the photo as a template, the court emphasized the assessment of Section 2 (2) UrhG (“creation”), according to which copyright does not protect the mere idea, but only its concrete implementation.
Secondly, did Valien make use of creative freedom or did he act on his own authority?
Valien deliberately deviated from the original photo: He chose warm red-orange tones instead of the cool original colors, changed the image detail for a more spacious effect and added shadow effects. These decisions created an “inviting, lively atmosphere”, which, however, was not recognizable in the original.
Between mission and creative freedom
The court made a clear distinction between the purely technical execution of strict specifications (within the framework of a commission) and creative co-design (in the form of autonomy), thus emphasizing a clear boundary between craftsmanship and art, which can be illustrated using an art historical example:
In the workshop of Peter Paul Rubens (1577 to 1640), assistants often painted backgrounds or details according to strict specifications. Because they did not make any independent stylistic decisions, Rubens remained the sole author. However, if they had introduced their own color compositions or interpretations (e.g. color tone, image detail and shadow effects), co-authorship would have been possible.
Valien did the latter: he used the leeway of the given painting style of photorealism to implement a subjective interpretation. The court ruled that such decisions – even in the context of a commission – were sufficient to establish co-authorship.
The Munich I Regional Court thus ruled that Valien is a co-author within the meaning of Section 8 UrhG on the basis of these independent artistic decisions.
Conclusion
For art students, the topic of co-authorship is not only relevant for collaborations, i.e. joint projects and workshop works, but also for commissioned works, such as that of Götz Valien.
It is therefore advisable to clarify the room for maneuver in advance and to make use of it if necessary. If you are granted creative leeway and make use of it, you do not have to be told that it is “merely a matter of craftsmanship”. In particular, it is worth documenting the order initiation and creative processes.
The “Paris Bar” case underlines the fact that authorship is not linked to fame or ideas, but to demonstrable creativity. Commissioned painters can also be co-authors if they contribute their signature style.
Literature
Munich Regional Court I, acknowledgement and final judgment of 07.08.2023 – 42 O 7449/22
https://rsw.beck.de/aktuell/daily/meldung/detail/lg-muenchen-i-streit-um-urheberschaft-der-gemaeldereihe-paris-bar-beigelegt
https://kur.quotus.org/article/KUR/2023/5-6/8
Image
https://www.gesetze-bayern.de/Content/Document/Y-300-Z-GRURRS-B-2023-N-19573?hl=true
