12/07/2024, updated content about PANArt copyright

Historically, this page was used to share technical knowledge to help apprentice manufacturers progress with their projects. Current events in the handpan community have prompted me to give priority to sharing my analysis of the legal situation between PANArt and HCU.

Legal conflict, history, status and perspectives...

Faced with the many stories and legends surrounding the conflict between PANArt and the handpan community, it seems important to me (Matthieu Shellopan) to write so as not to let too many legends take the place of history... To contextualise the elements of analysis that I might have to formulate, I am writing as a professional and passionate player in the handpan community. My activity as a maker was totally inspired by my encounters at PANArt nearly 20 years ago and my business has been developing for over 10 years within the handpan community. In my opinion, the handpan has been progressively emancipating itself from the Hang for over 10 years. Indeed, while it was totally inspired by the Hang, that deliberately minimalist sound sculpture that is always intuitive and offers an inimitable sound and 'kick', the handpan is pursuing a path that is tending more towards that of musical instruments with a broader range and offering ways of playing that are the subject of learning methods, their sound dynamics leaving less room for modulations to concentrate on a more crystalline sound... My point is not to say that one is better than the other, but rather that they are becoming less and less comparable! This question of emancipation, whether sufficient or insufficient, is the basic subject of a debate that has become a conflict...

photo of a handpan and a Hang illustrating the question of inspiration or plagiarism.

In 2020, PANArt, a company based in Switzerland, took steps in Germany to obtain recognition of their copyright in the Hang, which they considered to be a "work of applied art". 20 years after the creation of the Hang, their demand for emancipation from handpan manufacturers had now become much more restrictive than what had already been demanded in the past (e.g. the cases of Bellart in Spain and EchoSoundSculpture in Switzerland). This new wave of legal action could be explained by a legal opportunity provided by the European courts (see the Brompton ruling by the CJEU in 2020). PANArt's arguments are based in particular on a technical report by Dr Anthony ACHONG, to which a small group of makers wished to respond in the form of an open letter to the steel tuning community. In formulating this open letter, the idea was to try to have a sincere discussion about the Hang's functional and aesthetic elements, which are of great importance in terms of copyright. This initiative was never followed up, perhaps because there was no representative voice from the handpan community as a whole, and the only place for the debate to take place was in a court of law.

To deal with the risk of creating several legal precedents that would have been to the disadvantage of professional handpan players, a collective initiative claiming to represent the "united handpan community" was founded under the name of HCU. Various independent cases were grouped together or put on hold for what was to become the main case: HCU's attack on PANArt, carried out in Bern (CH) and contesting the fact that the Hang could benefit from copyright. With each party taking up conflicting positions, PANArt decided to respond to the fact that it was being attacked by forcing Swiss makers to join the lawsuit (by sending them letters of formal notice to cease their activities) and by seizing Ayasa's workshops.

Throughout the first phase of the trial, HCU's attack strategy was to develop arguments to ensure that the Hang could not benefit from copyright. It consisted of demonstrating that the Hang had been discovered by chance, without any creative process, and that its evolution since the first prototype was merely the result of technical choices. As a handpan maker who has been inspired by the work of PANArt, I obviously wouldn't feel comfortable making such a claim! But unfortunately there was no alternative solution because no more diplomatic approach had found a way to reach PANArt and many handpan players just had to agree to follow this HCU strategy or remain silent. It also became difficult during this period to propose new shapes for the instruments, as this could have been detrimental to the legal strategy chosen by HCU (if we start from the premise that shape is only the consequence of functional choices, any change in shape would be to the detriment of quality or would lead to the creation of another musical instrument).

The outcome of the first phase of the trial on 2 July 2024 appears to be 100% positive for PANArt, validating recognition of the Hang as a work of applied art identified by its lenticular shape, its Ding and Gu in a central position and the notes placed in a circle around the Ding. HCU's strategy of presenting the Hang as the result of technical choices that do not justify any copyright protection has failed, while consuming a budget that is probably high for both parties (HCU had indicated publicly that the initial budget announced by their lawyers was €250k for the entire procedure).

At the time of writing, I do not know whether HCU will appeal the decision of the Berne court to grant copyright recognition to PANArt, but many players in the handpan community recognise that PANArt deserves to have a copyright on its creation and that continuing to spend substantial sums on legal costs to delay or prevent this recognition is a less than honourable struggle. This has become even more blatant since the parallel case led by World of handpan with the same lawyers as those of HCU against the Hang name, which is probably the most disrespectful action that will tarnish our community for a long time to come (without wishing to go into too much detail here, it seems necessary to remember that World of handpan was the trigger that forced the handpan community to react against PANArt in 2020, and it was also one of the very first to benefit from the money collected by HCU... all this at a time when nobody wanted to support his business, which was seen as aggressive and which ostensibly used Hang-related keywords for its visibility). The continuation of HCU's work seems necessary because a definitive court ruling is a prerequisite for peaceful coexistence between PANArt and the handpan players (whatever the ruling, arbitration has become necessary). HCU must therefore be able to continue its action and will therefore have to continue to incur legal costs (and one day there may even be reimbursements of the opposing party's legal fees to pay...). HCU, as a self-proclaimed structure created in a hurry in 2020, nevertheless deserves to implement democratic procedures enabling it to be truly representative of its members and to account transparently for agreements enabling some of its decision-making members to be beneficiaries at the same time. Without this, the HCU risks facing increasing defiance.

During this period when it is possible to appeal, it is important to understand whether the judge will still agree to talk about aesthetics/functionality or to take expert opinions into account. This will determine whether it is better to appeal or let the procedure continue in its second phase.

The second phase of the trial should make it possible to establish the exact boundary between inspiration and plagiarism, which will determine the precise scope of PANArt's copyright. Given that the court rejected 100% of HCU's arguments concerning the 4 key points identifying the Hang, we may still have to expect to have to deal with constraints in the future that we previously considered unacceptable (cf. the refusal to stop the trial during the settlement period in 2023 when PANArt proposed abandoning the outward-pointing Ding, which was rejected by a majority of makers who considered it to be a functional feature). In commenting on the verdict, the two parties came to opposite conclusions: HCU believes that the scope of this copyright will be considerably reduced during the second stage of the trial and, on the other hand, PANArt announces that it is confident that the courts will consider that the handpans of Ayasa, Soma sound sculpture, YataoPan, World of handpan, Thomann, Terré, etc. (non-exhaustive list) will be considered as infringements/plagiarisms. The list of entities currently involved should also be seen as containing a sub-list of probably more than a hundred different handpans, and it will be necessary to judge which ones do or do not infringe copyright. Specialist opinions are needed to imagine the possible scenarios, but common sense suggests that no judge will find the motivation to analyse each instrument in detail, and this could have an influence...

The ideal outcome would be one that recognises PANArt's creativity and allows handpan makers to continue/adapt their work within a clear and sustainable legal framework. I think it's worth noting here that the handpan market is increasingly affected by the arrival of players with a mass production approach and that no outcome to this lawsuit will protect craftsmen (I consider a craftsman to be a company that is majority-owned by one or more tuners). Indeed, 'saving the handpan' in its current form, which could also be considered the easiest to industrialise, will also release the brakes currently weighing on investment. This is one of the advantages of this period of uncertainty for 'small' craftsmen, as large-scale investment aimed at industrialising production or trade seems to have been rather limited in Europe in recent years.

In conclusion, this phase of the trial is a landmark moment in history, and it's also an opportunity to once again unleash the creativity of those makers who wish to do so. They could make the handpan evolve and collectively defend their craft. Instead of just funding lawyers, they could also fund tools for collective use, prototype new shapes that remain free to use (and above all do this before an opportunistic player appropriates the design of what will be the "handpan v2" and forces the other makers into positions of dependence), They could fund research into tools and equipment to alleviate the physical wear and tear associated with the maker and tuner professions, they could fund a professional union to bring them together around common interests, or even promote a quality label...