On 17.11.2016, the Berlin Regional Court ruled that the destruction of the forgery of one of Max Pechstein’s ink brush drawings was lawful (Ref.: 28 O 498/14). It granted Pechstein’s community of heirs a claim for destruction and obliged the owner to consent to the destruction of the painting.
Pechstein’s drawing is a forgery
The owner acquired the ink brush drawing “Beach Scene with Boat” together with another painting in 1987. He believed both paintings to be original works by the artist Hermann Max Pechstein. The owner contacted an auctioneer in Berlin in 2014 and asked him to auction the paintings.
After examining the paintings, the owner was informed that only one of the paintings was an original work by Pechstein. The painting “Beach Scene with Boat” was a forgery of the painting “Outbound Canoe I”. The monogram “HMP” and the date “1914” were no proof that it was an original work by the artist Pechstein. On the contrary, the auctioneer credibly explained that the white pigment used was only introduced to the market at the end of the 1930s. Therefore, it could not be a painting drawn by Pechstein in 1914.
Destruction claim of the community of heirs
After the picture was preserved by the LKA Berlin, the Berlin Regional Court has now granted the community of heirs of the author Max Pechstein a claim for destruction (Section 98 (1) UrhG). The work is an unauthorized reproduction of Hermann Max Pechstein’s work “Ausfahrendes Kanu I”, which was offered for sale to the public.
Drawing represents a duplication
The decisive factor for the destruction claim was that the image was a reproduction within the meaning of Section 16 para. 1 UrhG. This is because repainted originals also constitute a reproduction. Unlike a mere adaptation of the work (Section 3 UrhG), a reproduction is generally subject to a claim for destruction.
Destruction claim not disproportionate
According to Berlin Regional Court, the destruction of the work is also not disproportionate. The alternative to destruction – namely the removal of the monogram – would not lead to an equally effective protection of copyrights. The court does not consider the removal of the monogram or the permanent marking of the work as a forgery to be a suitable measure within the meaning of Section 98 para. 4 UrhG.
Nor does it matter that the owner was convinced of the authenticity of the drawing when he attempted to sell it. This is because the claim for destruction does not require any fault in relation to the distribution.