Buying a painting straight from the source, one would have thought, offered maximum protection against fakes. Not always: In a judgment last week, the District Court (Landgericht) Düsseldorf ordered that a fake Immendorf painting titled „Ready-Made de l’Histoire dans Café de Flore“ (pictured to the left) be destroyed.
One year after Immendorf’s death in May 2007, the painting was discovered by his widow in an auction house in Düsseldorf where it was going to be auctioned. The owner’s brother had apparently bought „Ready-Made de l’Histoire dans Café de Flore“ in 1999 for DM 30,000 straight out of Immendorf’s workshop, complete with a certificate of authenticity. Not good enough: After having heard witnesses and, in particular, an expert, the court was convinced that the painting was an unauthorized copy of an earlier Immendorf painting, and most likely reproduced using a projection device.
On the basis of this finding, the court ordered the destruction of the painting, based on Sec. 98 German Copyright Act (Urhebergesetz). Under this provision, the infringed party can request the destruction of an unlawful copy. Pursuant to Sec. 98 Copyright Act, the court has to consider whether “the measure is disproportionate in the individual case”. In the Immendorf case, it held that there were no reasons not to order the destruction.
Note: This matter appears to have taken, based on the information in the judgment, from some time in the second half of 2008 until October 2012 – not a swift process, in my opinion. The matters seems to confirm what one sees time and time again: Once the court involves experts, it slows down tings considerably.