I am leaving shortly to go to Germany. I will give a joint lecture at the University of Konstanz's law school with Prof. Dr. Axel Nordemann of Boehmert & Boehmert on July 6. On July 9, I will be giving a lecture in Berlin to the Berlin Chapter of the German Intellectual Property Law Association.(DEUTSCHE VEREINIGUNG FÜR GEWERBLICHEN RECHTSSCHUTZ UND URHEBERRECHT).
In preparation, I have been thinking about what copyrights would be of interest to German students and attorneys. Judge Alex Kozinsky noted in Mattel Inc. v. MCA Records, Inc., 296 F.3d 894 (9th Cir. 2002) that Mattel's Barbie Doll was originally a "German street walker". In that case, the court found that trademark infringement and dilution claims asserted against the Danish band Acqua and their song "Barbie Girl" failed because a trademark owner doesn't have the right to control public discourse when the public imbues a mark beyond its source-identifying function. Barbie has spawned enormous litigation. For example, artist Tom Forsythe was awarded $1.8 milllion in attorneys fees and damages because of Mattel's meritless litigation against him for his "Food Chain Barbie" series of photographs. Mattel Inc. v. Walking Mountain Productions, 353 F.3d 792 (9th Cir. 2003).
One of my favorite German copyright disputes didn't involve a German copyright. The Copyright Office's Board of Appeals rejected Christo and Jean-Claude's application to register their wrapping of the Reichstag in Berlin as a "sculptural work". Re: Wrapped Reichstag, Berlin, 1971-1995 Control No. 60-504-9973 Decision of Appeals Board, U.S. Copyright Office, October 1, 1997. The image appears above. Christo and Jean-Claude own the copyright in the photograph shown above, but they do not have a copyright in the sculptural aspects of the wrapped Reichstag. A copy of this decision may be found at Franklin Pierce Law School's IP Mall.
Dr. Nordemann and I will discuss two cases in depth. One, Twin Books Corporation v. The Walt Disney Corporation, 83 F.3d 1162 (9th Cir. 1996), involves the initial publication in Germany in 1923 of the classic children's tale "Bambi, A Life in the Woods" without a US copyright notice.
The second, Blanch v. Koons, 467 F.3d 244 (2d Cir. 2006) involved a fashion photographer named Andrea Blanch visiting the Deutsche Guggenheim in Berlin and noticing that a photograph she'd taken had been painted into the latest work of the artist Jeff Koons (Koons and Barbie are jointly responsible for a good chunk of U.S. copyright law). Ms. Blanch returned from Berlin and sued Jeff Koons in New York, rather than in Berlin. Dr. Nordemann and I will discuss whether Germany might not have been a friendlier forum for her, and why.
A Westlaw search of "German copyright law" turned up only five cases in the ALLFEDS database. "German copyright" turned up only ten. "germany w/5 copyright" yielded 18 results, including the famous Wheaton v. Peters, 33 U.S. 591 (1834)("In Germany, where a free, perpetual copyright exists, books are cheaper than any where else in the world.")
But I think that we are going to see many more German copyrights exploited in the United States. I recently had the pleasure of watching Fritz Lang's "M" (1931) - a Criterion collection release. An amazing film.
And two years ago, I started representing the heirs of Fritz Grunbaum. Grunbaum was a Jewish cabaret performer and film star in Berlin who mocked Hitler mercilessly. He was one of the founders and stars of Vienna's Kabarett Simpl. Christopher Isherwood's "Berlin Stories" are said to be based on Fritz Grunbaum and his world, which in turn formed the basis for Kander & Ebb's "Cabaret". Grunbaum and many member of his family were murdered by the Nazis. His art collection, like the collections of so many victims of the Holocaust, ended up with a Nazi-owned Austrian transport and storage company called Schenker & Co AG that has never accounted for it. What happened to the artworks after they left Schenker and made their way to the walls of the world's museums is now a hotly disputed matter. According to Eberhard Kornfeld, owner of Galerie Kornfeld in Bern, Switzerland, the Egon Schiele self-portrait hanging in the Morgan Library belonged to Fritz Grunbaum. The Morgan Library's catalog From Berlin to Broadway: The Ebb Bequest of Modern German and Austrian Drawings claims that Kornfeld acquired it from Egon Schiele's estate.
Two years ago, when I googled Fritz Grunbaum I found very little on him. I did it again recently and found blog posts, a museum in Vienna devoted to him, a very respectable Wikipedia entry, and an IMDB filmography of his works. Checking out his film "The Theft of the Mona Lisa" (Der Raub der Mona Lisa) (1931), I discovered that he played the role "Adolph G" to make fun of Hitler and that the New York Times gave the film an amazing review in 1932, which I got to read.
Although Grunbaum's artworks vanished, his copyrighted celluloid image survived, his musical copyrights endured, and the German collecting societies steadily credited his estate with royalties over the years for his famous musical compositions.
Hollywood is hungry for remakes, and the appetite is only growing. Someone is going to want to remake the "Theft of the Mona Lisa" which was based on an actual incident in 1911.
As German films of the twentieth century become better known, catalogued, distributed and affordable, the market for and interest in German copyrights in the United States should grow.