The Hang®, created by Sabina Schärer and Felix Rohner in 2000, and produced and distributed by PANArt Hangbau AG, Bern, Switzerland, is protected by copyright.
Why this is so, and what it means, we want to answer by means of questions that are frequently asked by suppliers of hand pans and other people interested in the topic.
Who says that the Hang® is protected by copyright?
Whether an object is protected by copyright is decided by the - ultimately highest - courts of a respective country.
The assortment of hand pans, which are mere copies of the Hang®, has increased significantly over the last years. In addition, the European Court of Justice has recently handed down groundbreaking rulings on copyright protection for works with a functional component.
We have therefore decided to take legal action against dealers of hand pans whose products are copies of the Hang® and who refuse to stop selling them.
The district court of Berlin, the district court of Düsseldorf and the district court of Hamburg, (the latter after conducting a court hearing), have judged the Hang® to be protected by copyright and have prohibited the distribution of the hand pans complained about. These judgments issued in injunction proceedings are not yet legally binding at the moment.
For these reasons we are of the opinion that the Hang® is protected by copyright, at least in Germany, and if necessary we will also take legal action against other suppliers of hand pans, that are mere copies of the Hang®.
Does this protection also apply outside of Germany?
The recent European Court of Justice rulings mentioned above are of course also valid in all other EU countries and have an impact beyond.
PANArt is therefore convinced that the Hang® is also protected by copyright outside of Germany, namely also in Switzerland, and will, if necessary, take legal action against other suppliers of hand pans who are mere copies of the Hang®.
By the way, copyright protection must be distinguished from trademark protection: the first concerns the shape and is symbolized by a ©, the second, symbolized by a ®, the name of a product.
What must be changed on a hand pan to avoid copyright infringement?
The hand pans, for which a copyright infringement has been established to date, differ from each other in details. They vary in colour, in shape of tone fields (sometimes more round or more oval) or in their number, the shape of the central dome (round or elliptical, single or multi-stepped), the size of the opening (with or without a neck), the thickness of the material and its external masses. Some carry a brass ring, others a cord or plastic rim protector. Nevertheless, the judges have each found a copyright infringement.
Copyright law requires that the personal traits of the original must "fade away" from the newly created work. The features of the new work must come to the fore. Only then can one speak of permitted inspiration.
But PANArt encouraged the manufacturers to make their own hand pans, didn't they?
We very much welcome it when people become creative themselves. We have always encouraged people to find their own language - to develop their own forms and let their own music sound. The revolutionary art, which has its roots in Trinidad, should be carried on. But this does not mean copying our intellectual property. It means to participate in this exciting history with an original and innovative contribution.
We are setting a good example, and with our new sound sculptures Hang® Gubal, Hang® Bal etc. we have broken the lens shape ourselves over the last eight years and created new sound bodies that differ considerably from the Hang®.
Why is PANArt only now asserting its copyright?
Only a few years after the Hang® was published, PANArt fought against copyists and pointed out that the Hang® is the intellectual property of Sabina Schärer and Felix Rohner.
Unfortunately, apart from the details, there is no development in the design of the hand pans and we no longer want to watch copyists riding the wave of success of our intellectual property as mere free riders.
Moreover, the European Court of Justice has only recently confirmed our view that functional works such as the Hang® are also protected by copyright.
Why did PANArt offer a license to manufacturers of hand pans?
PANArt has patented the process by which its material for its works is produced and has offered this patent for licensing.
However, a license to a patent for the production of a material is no permission to copy the copyright protected form of the work produced with this material, or to use its trademarked name.
People all over the world are touched by the form and the sounds of the Hang®. Does PANArt now want to monopolize the access to these sounds?
No, absolutely not. The sound of a hand pan is determined by many parameters. Decisive is the material and the art of hammering. The shape of the Hang® on the other hand is freely chosen. To produce similar sounds, neither the lenticular shape of the Hang®, nor the circularly arranged tone fields, nor the dome are required. Countless other shapes are conceivable and feasible to produce the same sounds.
We hope that people inspired by the Hang® will develop hand pans that express their own personal character. Only then will innovation take place which alone is the justification of copyright.
Sabina Schärer and Felix Rohner