Immendorff copy need not be destroyed

According to a current decision by the Higher Regional Court (OLG) Düsseldorf, the alleged Immendorff painting "Ready-Made de l´Histoire dans Café de Flore" need not be destroyed. According to the court's view, the dissemination of the work is also lawful.

The widow of the artist Jörg Immendorff discovered in May 2008 at a Düsseldorf branch of a Viennese auction house the painting "Ready-Made de l´Histoire dans Café de Flore", which was located there for the purpose of sale at auction. In the auction catalogue, a copy of the work was depicted with a reference to the deceased artist. The original work from 1987 has different dimensions and is located in New Zealand. The widow considered the work to be an unauthorised copy and demanded in the course of her lawsuit the destruction of the work. The defendant owner of the alleged copy claimed that it was an original which he had acquired from his brother. The latter had purchased the painting directly in the artist's studio. An authenticity certificate bearing a signature was produced. The court of first instance granted the claim, inter alia on the basis of an art expert opinion that was obtained, on the grounds that the painting was a reproduction of the painting "Ready-Made de l´Histoire dans Café de Flore" that was distributed unlawfully (LG Köln, judgment of 17.10.2012 – 12 O 473/08). The appellate court did not follow this view.

Court decision

By appellate judgment of 05. 08.2014, the OLG Düsseldorf decided (I-20 U 167/12) that the alleged Immendorff painting "Ready-Made de l´Histoire dans Café de Flore" need not be destroyed. The dissemination of the work was lawful. The overall circumstances at the time of acquisition of the painting in Immendorff's studio were to be assessed as Immendorff's consent to the publication and exploitation of the work.

A work may be published and exploited following processing or modification if the artist has given his consent to this. Immendorff at least tolerated direct sales of paintings in his studio by his staff. He had therefore created the appearance that he was consenting to the sale and thus to the publication and exploitation of the works sold in his studio as "his" works. The purchaser was entitled to rely on this, even if the staff member in the specific case had sold a painting which Immendorff had not authorised. Moreover, there were no indications that the acquirer had knowledge of, or ought to have had knowledge of, the absence of Immendorff's corresponding consent in relation to the specific work. Immendorff's widow, as heir, must accept these legal circumstances as binding upon her.

The question of whether the painting in dispute is a forgery or a creation of the artist Immendorff himself is therefore no longer relevant. The same applies to the question of whether the "authenticity certificate" handed over at the time of purchase actually came from Immendorff

For the same reasons, the court also rejected the widow's claim to identify the work as a forgery or to demand blackening, alternatively removal of the signature.

Summary

The artist has the possibility of giving his consent to the publication and exploitation of unauthorisedly made copies of his work. Corresponding actions are lawful in such cases. For this purpose, it is already sufficient if the artist tolerates direct sales of copies of his works. Explicit consent is therefore not required.

The senate did not permit revision. The artist's widow therefore has only the remedy of a petition for revision (Nichtzulassungsbeschwerde) before the Federal Court of Justice (BGH).