Cardiff 101 sues Cardiff Kook Run over copyright

Cardiff 101 Main Street, a nonprofit that owns the rights of the Cardiff Kook statue, recently filed a copyright infringement lawsuit accusing the Cardiff Kook Run of knowingly using the statue’s likeness without paying.

The lawsuit contends the Cardiff Kook Run and Steve Lebherz, the race co-founder and one of its organizers, displayed the Cardiff Kook’s image on at least 25 signs, a billboard, medals, T-shirts, websites and other promotional materials in recent months. It was filed Jan. 25 in a federal court, less than two weeks before the annual 5K, 10K and costume contest on Feb. 7.

“Cardiff 101 is a steward of that copyright and has the right to protect it,” said attorney Malte Farnaes, representing Cardiff 101, over the phone this week.

Matthew Antichevich, who created the Cardiff Kook statue in 2007, transferred the image copyright that same year to Cardiff 101. The nonprofit licenses the copyright to pay for projects that benefit the community, according to Farnaes.

The “Magic Carpet Ride” statue, better known as the Cardiff Kook, attracted plenty of local and even national attention soon after debuting thanks to pranksters who adorned it in elaborate costumes.

Although the Cardiff Kook Run started in 2012, Lebherz when reached this week said he didn’t know until December the image was copyrighted. Lebherz said he agreed to cease using the image after this year’s Feb. 7 run, adding that he would have done so sooner, but the promotional materials for the run were already up and would have been costly to remove.

“I didn’t know you could copyright a public work,” Lebherz said. “That was my first thought.”

In response, Farnaes said that Lebherz was aware of the copyright and paid a licensing fee in the past, although Farnaes declined to go into more detail at this time when asked about the agreement. This year, Lebherz refused to pay and Cardiff 101 was forced to take legal action, Farnaes added.

The lawsuit seeks statutory damages of up to $150,000 for willful infringement.

Lebherz estimated that $15,000 in Kook run proceeds from 2012 to 2015 went toward sprucing up the area around the statue, arguing it’s unfair he’s being sued over using the likeness of a statue he’s spent so much time and energy on.

“It’s really too bad…We put money and upkeep towards it, and we’re somehow being singled out,” Lebherz said.

Lebherz also called the lawsuit “sour grapes,” because the Cardiff Kook Run declined to partner with Cardiff 101 on this year’s run due to the nonprofit wanting a larger administrative fee. Instead, the run is now working with the nonprofit Patrons of Encinitas Parks to build a park north of the statue.

Farnaes said Cardiff 101 in no way wants to stop the upcoming race — the nonprofit’s beef is simply over the copyright.

Cardiff 101 Executive Director Annika Walden on Dec. 15 emailed Lebherz stating he needed to enter a license agreement to use the image, according to records included in the lawsuit.

Walden sent another email on Jan. 12 reminding Lebherz of the copyright and called for him to cease and desist. It also stated that if Cardiff 101 does not hear back by Jan. 15, “We will assume that you refuse to enter into a license agreement and will proceed accordingly.”

Gerard Dermody, Lebherz’s attorney, said in a Jan. 20 email the gist of Cardiff 101’s demand is that Lebherz and his business partners must pay $10,000 for licensing.

“If it is any consolation, Steve (Lebherz) will no longer use the image of the Cardiff Kook statue after February 7, 2016,” Dermody wrote.