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A legal battle that has been going on for more than 20 years...
The Hang®, an innovative musical instrument created by the Swiss company Panart, is at the heart of an intense legal battle. Since its introduction in 2000, the Hang® has captivated musicians and music lovers around the world with its unique resonance and distinctive design. However, with the growing popularity of the instrument, many imitations have emerged, leading Panart into a series of litigations to protect its original work.
The central question of these legal cases is whether Panart holds a copyright on the design and sound of the Hang®, or if the instrument can be freely reproduced and sold by other manufacturers. Courts have been called upon to decide on complex issues such as the distinction between copyright protection and trademark protection, as well as the extent of legal protection for musical instruments as works of art.
The court decisions in these cases could have significant implications not only for Panart and handpan manufacturers but also for the music industry and intellectual property law in general. While Panart defends its right to the exclusivity of its invention, handpan manufacturers argue for the right to continue producing and selling instruments inspired by the Hang®, claiming that innovation and diversity in the field of music should not be hindered by copyright restrictions.
The Bern court is thus faced with the delicate task of balancing the interests of intellectual property protection with those of freedom of expression and innovation. The outcome of this case could redefine the boundaries of copyright protection in the field of musical instruments and influence how creators and innovators approach the design and marketing of their works.
It should be noted that neither PANArt nor the group of plaintiffs from Berne (see below) have managed to find an amicable agreement that would do justice to everyone. The proposal to pay royalties to PANArt for each handpan sold worldwide was not accepted by the Swiss creators.
What is PANArt's position in this case?
PANArt's position in the legal case regarding the copyright of the Hang® is that they are convinced their instrument is protected by copyright, at least in Germany, and are prepared to take legal action against other handpan suppliers who produce copies of the Hang®. They have also mentioned that German regional courts have ruled that the Hang® is protected by copyright and have prohibited the distribution of the contentious handpans. However, these judgments have not yet been enforced at this time.
PANArt has also emphasized that recent rulings by the European Court of Justice also apply in all other EU countries and beyond, reinforcing their belief that the Hang® is protected by copyright outside of Germany, including in Switzerland. They clearly distinguish between copyright protection, which concerns the shape of the instrument, and trademark protection, which concerns the product name.
Who are the manufacturers and retailers involved in the legal confrontation?
The manufacturers and retailers involved in the legal confrontation with PANArt are mentioned in a chronological sequence of events since the fall of 2020, published by PANIVERSE.ORG. Since September 2020, a representative group of the various handpan stakeholders (manufacturers, retailers, teachers, artists...) called 'Handpan Community United' (HCU website) was also founded in response to the legal situation. HCU remains an informal group that cannot become a civil party in a lawsuit. Its role is to inform the community and raise funds to finance legal costs.
The plaintiffs in the Bern court are legal and natural persons, handpan manufacturers, importers of instruments made in China, music instrument retailers, and dropshipping sites (direct shipment from the supplier - in China - to the end customer).
The complete list, as well as the plaintiffs' arguments, can be consulted HERE. The plaintiffs are represented by the international law firm Bird & Bird.
Furthermore, there was a legal case in Switzerland that was peacefully resolved between EchoSoundSculpture GmbH and PANArt Hangbau AG, where EchoSoundSculpture had to modify the design of its handpans to avoid any confusion with PANArt's instruments. Another Swiss manufacturer, Soma Sound Sculptures, also changed its design following this settlement.
What are the handpan manufacturers' arguments against PANArt?
Handpan manufacturers have several arguments against PANArt in the legal case concerning the copyright of the Hang®. Here are some of their main points:
Freedom of Shape:
An expert opinion (Dr. Achong) published by PANArt states that any external shape is conceivable for handpans and that the lens shape is an aesthetic decision. This suggests that the specific design and shape of the Hang® are not the only possibilities for an instrument of this type to produce the same sound. This assumption is strongly contested by all current handpan manufacturers who believe that the lenticular shape (lens shape) is an essential prerequisite to achieve the desired sound, as well as playability ergonomics.
Innovation and Diversity:
Manufacturers argue that innovation and diversity in the field of music should not be hindered by copyright restrictions. They advocate for the right to continue producing and selling instruments inspired by the Hang®, without being limited by copyright claims.
Questioning the Validity of Copyright:
The legal situation of handpans has become more than questionable following a German court decision, questioning the validity of copyright applied to applied arts.
Handpan Community United (HCU):
In response to the legal situation, a group called 'Handpan Community United' (HCU) was founded, emphasizing the solidarity and unity of manufacturers in the face of the situation.
Why is the legal confrontation between PANArt and handpan manufacturers important for the music industry?
The legal confrontation between PANArt and handpan manufacturers is significant for the music industry for several reasons:
Copyright and Innovation:
This case highlights the tension between copyright protection and innovation in musical instrument creation. The decisions made could influence how copyrights are applied to musical instruments and designs in the future.
Legal Precedent:
The outcomes of this case could set an important precedent for future intellectual property disputes in the music industry.
Access and Diversity:
The case's resolution could impact musicians' access to a variety of instruments and manufacturers' ability to offer innovative designs without fear of copyright infringement lawsuits.
Protection of Original Creations:
It also raises questions about the protection of original creations and how creators can defend their works against imitations.
Impact on Small Businesses:
As the handpan industry consists of many small manufacturers, the case could significantly impact these businesses and the culture of innovation within the community.
Community Solidarity:
The formation of groups like "Handpan Community United" (HCU) underscores the importance of community solidarity in the face of legal challenges and could inspire other communities to unite to protect their common interests.
In summary, this case serves as a barometer for the balance between intellectual property protection and creative freedom in the music industry, with potential implications for creators, manufacturers, and music consumers worldwide.
Sources:
• Official PANArt website, creators of the Hang®: PANArt website
• Official HCU (Handpan Community United) website: HCU website
• Paniverse.org website: Paniverse Website
• Pan Lab Vienna website: Pan Lab Vienna Website
• Summary of the case presented by the plaintiffs to the Court of Justice of Berne (CH): Court Brief (in German)