Pantheon Steel Vintage Steelpan vids; playlist compiled by Handpan House @handpanhouse #handpanhouse
https://www.youtube.com/playlist?list=PLtpRO3zwy8AZMmRdFlUROqKFUB8GiP3NO
https://www.youtube.com/playlist?list=PLtpRO3zwy8AZMmRdFlUROqKFUB8GiP3NO
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Pantheon Steel Vintage Steelpan vids - YouTube
Herein we submit and note 3 examples of the like/dislike ratio and have no further comments… ♠️
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“Felix Rohner, tuner of PANArt, draws and recites.
Uebersetzung: Christine Studer
We are in a fight:
For honesty,
Respect and justice.
Shaping a body with a hammer,
To make the spirit and soul resound,
Old images and norms are shattered,
A different kind of music can be heard!
The hands hear, the ears see,
An unknown space opens up.
The eyes feel, the senses quiver,
Quite real, not a confused dream,
Hard the material, compressed, compacted,
Thrice through the fire, then smoothed,
Daily wrestling with iron in hand:
Sound impulses for a new land.
We are in a fight
With humour and mirth!
But there I see plagiarism of grave embarrassment!
Yes, we are in a fight.
He who draws blood from the sounding plexus,
Reduces the plexus to a collection of sounds,
Replaces the hand with a robot,
Pretends harmony, relies on bluffing,
He who avoids his own form, chooses an alien one,
That tells a completely different story,
Makes business with it, upholds noble websites,
Let him explain himself, let him stand up to it!
Now there's a headwind – we’ll see.
Judges are looking now, and looking closely:
Weak sheet metal or built upon spirit?
We have a fight here,
That's good, even a kind of merriment.
I speak, I play gu and ding, I sing:
That the debate may be settled,
That despite the hype it penetrates the consciousness,
To recognise a gift, the thing of things,
To withdraw it from the commercial haze!
The fight is fierce, we fight back,
For respect, honesty and the arts.”
Uebersetzung: Christine Studer
We are in a fight:
For honesty,
Respect and justice.
Shaping a body with a hammer,
To make the spirit and soul resound,
Old images and norms are shattered,
A different kind of music can be heard!
The hands hear, the ears see,
An unknown space opens up.
The eyes feel, the senses quiver,
Quite real, not a confused dream,
Hard the material, compressed, compacted,
Thrice through the fire, then smoothed,
Daily wrestling with iron in hand:
Sound impulses for a new land.
We are in a fight
With humour and mirth!
But there I see plagiarism of grave embarrassment!
Yes, we are in a fight.
He who draws blood from the sounding plexus,
Reduces the plexus to a collection of sounds,
Replaces the hand with a robot,
Pretends harmony, relies on bluffing,
He who avoids his own form, chooses an alien one,
That tells a completely different story,
Makes business with it, upholds noble websites,
Let him explain himself, let him stand up to it!
Now there's a headwind – we’ll see.
Judges are looking now, and looking closely:
Weak sheet metal or built upon spirit?
We have a fight here,
That's good, even a kind of merriment.
I speak, I play gu and ding, I sing:
That the debate may be settled,
That despite the hype it penetrates the consciousness,
To recognise a gift, the thing of things,
To withdraw it from the commercial haze!
The fight is fierce, we fight back,
For respect, honesty and the arts.”
Rebuttal to the Judgment of the Supreme Court of the Canton of Bern Regarding the Copyright Protection of the Hang (Case HG20117)
Introduction
This document presents a rebuttal to the decision of the Supreme Court of the Canton of Bern, dated 2 July 2024, in the matter of Ayasa Instruments B.V., et al. v. PANArt Hangbau AG, et al. The judgment erroneously concludes that the “Hang” musical instrument, in its various forms, constitutes a “work of applied art” and is therefore eligible for copyright protection under Swiss, German, and Dutch law.
This rebuttal will demonstrate that the court’s decision is based on a flawed interpretation of copyright principles, a critical underestimation of the technical and functional constraints inherent in the instrument’s design, and an overly narrow view of the prior art. We will argue that the Hang, while an innovative and skillfully crafted instrument, is ultimately a product of functional design and an evolution of existing musical concepts, rather than a unique artistic creation deserving of the extensive monopoly that copyright provides. The court’s decision, if allowed to stand, would set a dangerous precedent, blurring the lines between functional design and artistic expression. It threatens to improperly extend copyright protection to a wide range of functional objects, from tools to furniture, stifling the very innovation and competition that intellectual property law is meant to foster. This is not merely a dispute over one instrument; it is a defense of the principle that functional designs belong in the public domain to be built upon, not locked away by a single creator.
Introduction
This document presents a rebuttal to the decision of the Supreme Court of the Canton of Bern, dated 2 July 2024, in the matter of Ayasa Instruments B.V., et al. v. PANArt Hangbau AG, et al. The judgment erroneously concludes that the “Hang” musical instrument, in its various forms, constitutes a “work of applied art” and is therefore eligible for copyright protection under Swiss, German, and Dutch law.
This rebuttal will demonstrate that the court’s decision is based on a flawed interpretation of copyright principles, a critical underestimation of the technical and functional constraints inherent in the instrument’s design, and an overly narrow view of the prior art. We will argue that the Hang, while an innovative and skillfully crafted instrument, is ultimately a product of functional design and an evolution of existing musical concepts, rather than a unique artistic creation deserving of the extensive monopoly that copyright provides. The court’s decision, if allowed to stand, would set a dangerous precedent, blurring the lines between functional design and artistic expression. It threatens to improperly extend copyright protection to a wide range of functional objects, from tools to furniture, stifling the very innovation and competition that intellectual property law is meant to foster. This is not merely a dispute over one instrument; it is a defense of the principle that functional designs belong in the public domain to be built upon, not locked away by a single creator.
I. The Court Misapplied the Standard for Originality and Individual Character
The central pillar of copyright law, across all three relevant jurisdictions, is the requirement that a work must be an “intellectual creation” possessing “individual character” or “originality.” This standard acts as a gatekeeper, ensuring that copyright protects genuine artistic expression, not mere novelty or technical skill. The court, in its analysis, sets this bar so low as to be almost meaningless, effectively conflating skilled craftsmanship with genuine artistic creation and mistaking elegant problem-solving for a unique authorial voice.
• The “Statistical Uniqueness” Test Is Not Met: The court correctly identifies the principle of “statistical uniqueness” – the idea that it should be unlikely for another creator, given the same task, to arrive at the same result. However, its application of this test is superficial. The “task” was not an open-ended artistic brief but a specific technical problem: to create a “ghatam made of sheet metal with tones.” This implies a hand-playable, portable instrument with a resonant chamber and a defined scale. Given this functional starting point and the well-established prior art of steelpans, gongs, and other idiophones, the Hang's design is not a surprising or statistically unique outcome. It is, rather, a logical and elegant synthesis of known principles. A skilled instrument maker, tasked with the same problem, would inevitably be drawn to a similar solution:
◦ A lenticular body is the most efficient way to create a strong, lightweight, and resonant chamber.
◦ A circular arrangement of tone fields is the most ergonomic layout for two-handed playing.
◦ A central, foundational note (the dome) is a common feature for establishing a tonal center.
The Hang is the result of a convergent evolution of design, driven by the laws of physics and ergonomics, not a bolt of artistic lightning.
• Minimalism and Simplicity Do Not Automatically Equal Art: The court argues that the “minimalism” and “simple but clear lines” of the Hang contribute to its artistic character. This fundamentally misunderstands the role of simplicity in design versus art. In the context of a functional object, simplicity is the hallmark of good design, not necessarily art. It represents the successful elimination of the superfluous to achieve maximum efficiency. The Hang’s form is dictated by the physics of sound production and the ergonomics of playing; its “simplicity” is a result of stripping away non-essential elements to create a functional and acoustically pure instrument. This is the principle of "less is more" as an engineering ethos, not an artistic one. To label this as an artistic choice is to ignore the fundamental distinction between aesthetic appeal derived from functional purity and aesthetic appeal derived from an artist's expressive intent. A minimalist sculpture by Donald Judd, for example, uses simple forms to explore concepts of space and objecthood; its purpose is purely conceptual. The Hang's simple form serves the concrete purpose of producing sound efficiently and comfortably.
The central pillar of copyright law, across all three relevant jurisdictions, is the requirement that a work must be an “intellectual creation” possessing “individual character” or “originality.” This standard acts as a gatekeeper, ensuring that copyright protects genuine artistic expression, not mere novelty or technical skill. The court, in its analysis, sets this bar so low as to be almost meaningless, effectively conflating skilled craftsmanship with genuine artistic creation and mistaking elegant problem-solving for a unique authorial voice.
• The “Statistical Uniqueness” Test Is Not Met: The court correctly identifies the principle of “statistical uniqueness” – the idea that it should be unlikely for another creator, given the same task, to arrive at the same result. However, its application of this test is superficial. The “task” was not an open-ended artistic brief but a specific technical problem: to create a “ghatam made of sheet metal with tones.” This implies a hand-playable, portable instrument with a resonant chamber and a defined scale. Given this functional starting point and the well-established prior art of steelpans, gongs, and other idiophones, the Hang's design is not a surprising or statistically unique outcome. It is, rather, a logical and elegant synthesis of known principles. A skilled instrument maker, tasked with the same problem, would inevitably be drawn to a similar solution:
◦ A lenticular body is the most efficient way to create a strong, lightweight, and resonant chamber.
◦ A circular arrangement of tone fields is the most ergonomic layout for two-handed playing.
◦ A central, foundational note (the dome) is a common feature for establishing a tonal center.
The Hang is the result of a convergent evolution of design, driven by the laws of physics and ergonomics, not a bolt of artistic lightning.
• Minimalism and Simplicity Do Not Automatically Equal Art: The court argues that the “minimalism” and “simple but clear lines” of the Hang contribute to its artistic character. This fundamentally misunderstands the role of simplicity in design versus art. In the context of a functional object, simplicity is the hallmark of good design, not necessarily art. It represents the successful elimination of the superfluous to achieve maximum efficiency. The Hang’s form is dictated by the physics of sound production and the ergonomics of playing; its “simplicity” is a result of stripping away non-essential elements to create a functional and acoustically pure instrument. This is the principle of "less is more" as an engineering ethos, not an artistic one. To label this as an artistic choice is to ignore the fundamental distinction between aesthetic appeal derived from functional purity and aesthetic appeal derived from an artist's expressive intent. A minimalist sculpture by Donald Judd, for example, uses simple forms to explore concepts of space and objecthood; its purpose is purely conceptual. The Hang's simple form serves the concrete purpose of producing sound efficiently and comfortably.
II. The Court Underestimated the Dominance of Technical and Functional Constraints
A fundamental principle of copyright law is that protection does not extend to ideas, procedures, or methods of operation. When the design of an object is dictated by its technical function, it is not eligible for copyright protection. This is to prevent the monopolization of useful articles and to ensure that functional solutions remain in the public domain for others to use and improve upon. The court acknowledges this principle but fails to apply it rigorously to the Hang, treating clear functional imperatives as mere "suggestions" that the creators were free to ignore.
• The Four Key Features Are Functionally Determined: The court examines the four key features of the Hang—the lenticular shape, the central dome, the resonance hole, and the circular tone fields—and concludes that their design is not entirely dictated by technical constraints. This sets an impossibly high bar for the functionality defense. The question is not whether there were any conceivable alternatives, however impractical, but whether the chosen design was substantially driven by functional considerations. A detailed examination shows that each feature is a direct answer to a technical or ergonomic problem:
◦ Lenticular Shape: This shape is not an arbitrary aesthetic choice; it is an ideal solution for creating a resonant chamber. The curved surfaces are strong and resist deformation, while the enclosed volume allows for the creation of a Helmholtz resonator. Furthermore, the convex top and bottom are ergonomically suited for being held on the player's lap. It is a classic example of form following function.
◦ Central Dome (“Ding”): The dome is a common feature in percussion instruments (like gongs) used to create a fundamental, bell-like tone. Its central placement is the most ergonomic and acoustically logical position, providing a stable tonal anchor for the surrounding notes and being equally accessible to both hands. Its existence and placement are dictated by musical and ergonomic logic.
◦ Resonance Hole (“Gu”): The creation of a Helmholtz resonator, which produces the instrument's characteristic bass tone, requires an opening. Its placement opposite the dome is a practical choice that allows for balanced sound projection and, crucially, provides access for the initial tuning and later re-tuning of the tone fields from the inside. This functional necessity, not an artistic whim, dictates its location.
◦ Circular Tone Fields: This arrangement is a direct descendant of the steelpan and represents the most efficient and intuitive layout for a hand-played percussion instrument with a defined scale. It allows the player to move between notes with minimal hand movement, facilitating fluid melodies and rhythms. It is an optimization for playability, not a decorative pattern.
• The “Overall Impression” Is One of a Functional Instrument: The court argues that the combination of these elements creates a unique and artistic overall impression. This is a fallacious argument. Combining several functional elements does not magically transform a functional object into a work of art. The “overall impression” of the Hang is not that of a sculpture that happens to make sound; it is the impression of a well-designed and highly functional musical instrument. Its beauty derives from the elegant way its form solves the complex problems of sound production and ergonomics. To grant copyright on this basis is akin to granting copyright to a well-designed chair or a high-performance bicycle simply because their functional elegance is aesthetically pleasing.
A fundamental principle of copyright law is that protection does not extend to ideas, procedures, or methods of operation. When the design of an object is dictated by its technical function, it is not eligible for copyright protection. This is to prevent the monopolization of useful articles and to ensure that functional solutions remain in the public domain for others to use and improve upon. The court acknowledges this principle but fails to apply it rigorously to the Hang, treating clear functional imperatives as mere "suggestions" that the creators were free to ignore.
• The Four Key Features Are Functionally Determined: The court examines the four key features of the Hang—the lenticular shape, the central dome, the resonance hole, and the circular tone fields—and concludes that their design is not entirely dictated by technical constraints. This sets an impossibly high bar for the functionality defense. The question is not whether there were any conceivable alternatives, however impractical, but whether the chosen design was substantially driven by functional considerations. A detailed examination shows that each feature is a direct answer to a technical or ergonomic problem:
◦ Lenticular Shape: This shape is not an arbitrary aesthetic choice; it is an ideal solution for creating a resonant chamber. The curved surfaces are strong and resist deformation, while the enclosed volume allows for the creation of a Helmholtz resonator. Furthermore, the convex top and bottom are ergonomically suited for being held on the player's lap. It is a classic example of form following function.
◦ Central Dome (“Ding”): The dome is a common feature in percussion instruments (like gongs) used to create a fundamental, bell-like tone. Its central placement is the most ergonomic and acoustically logical position, providing a stable tonal anchor for the surrounding notes and being equally accessible to both hands. Its existence and placement are dictated by musical and ergonomic logic.
◦ Resonance Hole (“Gu”): The creation of a Helmholtz resonator, which produces the instrument's characteristic bass tone, requires an opening. Its placement opposite the dome is a practical choice that allows for balanced sound projection and, crucially, provides access for the initial tuning and later re-tuning of the tone fields from the inside. This functional necessity, not an artistic whim, dictates its location.
◦ Circular Tone Fields: This arrangement is a direct descendant of the steelpan and represents the most efficient and intuitive layout for a hand-played percussion instrument with a defined scale. It allows the player to move between notes with minimal hand movement, facilitating fluid melodies and rhythms. It is an optimization for playability, not a decorative pattern.
• The “Overall Impression” Is One of a Functional Instrument: The court argues that the combination of these elements creates a unique and artistic overall impression. This is a fallacious argument. Combining several functional elements does not magically transform a functional object into a work of art. The “overall impression” of the Hang is not that of a sculpture that happens to make sound; it is the impression of a well-designed and highly functional musical instrument. Its beauty derives from the elegant way its form solves the complex problems of sound production and ergonomics. To grant copyright on this basis is akin to granting copyright to a well-designed chair or a high-performance bicycle simply because their functional elegance is aesthetically pleasing.
III. The Court’s Analysis of Prior Art Is Flawed
The court dismisses the argument that the Hang is a “mosaic” of pre-existing forms, stating that such a view is inadmissible. However, when all the key elements of a creation are already present in the prior art, their combination in a new object, especially when that combination is driven by a functional goal, does not automatically warrant copyright protection. The history of invention is a history of combination and refinement, and copyright cannot be used to halt this process.
• The Hang Is an Evolutionary, Not a Revolutionary, Creation: The Hang did not emerge from a vacuum. It stands on the shoulders of giants, representing a brilliant synthesis of existing ideas, not a creation ex nihilo. It is a clear and direct descendant of several instruments:
◦ The Trinidadian steelpan provided the fundamental concept of tuned dimples hammered into a steel surface.
◦ The Indian ghatam, a clay pot drum, provided the model for a resonant chamber played with the hands.
◦ The gong provided the precedent for a central, dome-like boss to create a fundamental tone.
The creators of the Hang skillfully combined and refined these existing concepts, but they did not create something so radically different as to be considered a “leap” in artistic creation. They were participants in a long tradition of instrument making, not isolated artists.
• The “Mosaic” View Is Relevant When Elements Are Commonplace: While the “mosaic” argument cannot be used to dissect every new creation, it is highly relevant when the constituent parts are common and well-known in the relevant field. The court’s refusal to properly consider the cumulative effect of these prior instruments led it to overestimate the originality of the Hang. It treated the instrument as if it were a singular invention, ignoring the rich context of percussion instrument design from which it clearly emerged. This failure to see the Hang as a logical next step in an existing tradition is a central flaw in the court’s reasoning.
The court dismisses the argument that the Hang is a “mosaic” of pre-existing forms, stating that such a view is inadmissible. However, when all the key elements of a creation are already present in the prior art, their combination in a new object, especially when that combination is driven by a functional goal, does not automatically warrant copyright protection. The history of invention is a history of combination and refinement, and copyright cannot be used to halt this process.
• The Hang Is an Evolutionary, Not a Revolutionary, Creation: The Hang did not emerge from a vacuum. It stands on the shoulders of giants, representing a brilliant synthesis of existing ideas, not a creation ex nihilo. It is a clear and direct descendant of several instruments:
◦ The Trinidadian steelpan provided the fundamental concept of tuned dimples hammered into a steel surface.
◦ The Indian ghatam, a clay pot drum, provided the model for a resonant chamber played with the hands.
◦ The gong provided the precedent for a central, dome-like boss to create a fundamental tone.
The creators of the Hang skillfully combined and refined these existing concepts, but they did not create something so radically different as to be considered a “leap” in artistic creation. They were participants in a long tradition of instrument making, not isolated artists.
• The “Mosaic” View Is Relevant When Elements Are Commonplace: While the “mosaic” argument cannot be used to dissect every new creation, it is highly relevant when the constituent parts are common and well-known in the relevant field. The court’s refusal to properly consider the cumulative effect of these prior instruments led it to overestimate the originality of the Hang. It treated the instrument as if it were a singular invention, ignoring the rich context of percussion instrument design from which it clearly emerged. This failure to see the Hang as a logical next step in an existing tradition is a central flaw in the court’s reasoning.
IV. Granting Copyright to the Hang Improperly Monopolizes a Functional Design
The most dangerous aspect of the court’s decision is that it effectively grants a copyright monopoly on a functional design. This has a chilling effect on innovation and competition, undermining the very purpose of intellectual property law.
• Protecting an Idea, Not an Expression: By granting copyright protection to the Hang, the court is not merely protecting the specific, artistic expression of its creators; it is protecting the very idea of a convex, hand-played steel instrument with a central dome and circular tone fields. This is a fundamental misapplication of the idea-expression dichotomy, a cornerstone of copyright law. Other instrument makers should be free to explore this concept and create their own variations, just as luthiers have been free for centuries to create their own versions of the violin. Stradivarius created some of the most perfect expressions of the violin form, but he was not granted a monopoly on the idea of a bowed, stringed instrument. This freedom to innovate on a shared idea is what has allowed musical instruments to evolve over centuries.
• Stifling a Vibrant Musical Community: The Hang has inspired a global community of musicians and instrument makers, leading to the birth of the "handpan" as a new class of instrument. This vibrant ecosystem, full of passionate creators who are constantly experimenting with new materials, scales, and designs, is now threatened. The court’s decision gives one company the power to sue these innovators out of existence, to control the price and availability of these instruments, and to freeze the evolution of the handpan in a form dictated by them. This is not the purpose of copyright law, which is intended to encourage, not stifle, the "progress of science and useful arts."
The most dangerous aspect of the court’s decision is that it effectively grants a copyright monopoly on a functional design. This has a chilling effect on innovation and competition, undermining the very purpose of intellectual property law.
• Protecting an Idea, Not an Expression: By granting copyright protection to the Hang, the court is not merely protecting the specific, artistic expression of its creators; it is protecting the very idea of a convex, hand-played steel instrument with a central dome and circular tone fields. This is a fundamental misapplication of the idea-expression dichotomy, a cornerstone of copyright law. Other instrument makers should be free to explore this concept and create their own variations, just as luthiers have been free for centuries to create their own versions of the violin. Stradivarius created some of the most perfect expressions of the violin form, but he was not granted a monopoly on the idea of a bowed, stringed instrument. This freedom to innovate on a shared idea is what has allowed musical instruments to evolve over centuries.
• Stifling a Vibrant Musical Community: The Hang has inspired a global community of musicians and instrument makers, leading to the birth of the "handpan" as a new class of instrument. This vibrant ecosystem, full of passionate creators who are constantly experimenting with new materials, scales, and designs, is now threatened. The court’s decision gives one company the power to sue these innovators out of existence, to control the price and availability of these instruments, and to freeze the evolution of the handpan in a form dictated by them. This is not the purpose of copyright law, which is intended to encourage, not stifle, the "progress of science and useful arts."
Conclusion
The judgment of the Supreme Court of the Canton of Bern is a clear error of law and a dangerous overreach of copyright protection. The court has misapplied the standards for originality, fundamentally underestimated the role of functional and technical constraints in the Hang's design, and failed to properly situate the instrument within its historical context of prior art. The Hang is a remarkable achievement of instrument design and craftsmanship, a testament to the skill and ingenuity of its creators. However, it is a work of elegant functional design, not a work of applied art in the sense of copyright law.
We urge a reconsideration of this decision. To allow it to stand would be to expand copyright protection into the realm of functional objects, creating legal uncertainty and harming the very creative communities that the law is meant to protect. It would be a detriment to innovation, competition, and the free and open development of musical culture. The creators of the Hang deserve to be celebrated for their contribution to the world of music, but they do not deserve a decades-long monopoly on an entire class of musical instruments.
The judgment of the Supreme Court of the Canton of Bern is a clear error of law and a dangerous overreach of copyright protection. The court has misapplied the standards for originality, fundamentally underestimated the role of functional and technical constraints in the Hang's design, and failed to properly situate the instrument within its historical context of prior art. The Hang is a remarkable achievement of instrument design and craftsmanship, a testament to the skill and ingenuity of its creators. However, it is a work of elegant functional design, not a work of applied art in the sense of copyright law.
We urge a reconsideration of this decision. To allow it to stand would be to expand copyright protection into the realm of functional objects, creating legal uncertainty and harming the very creative communities that the law is meant to protect. It would be a detriment to innovation, competition, and the free and open development of musical culture. The creators of the Hang deserve to be celebrated for their contribution to the world of music, but they do not deserve a decades-long monopoly on an entire class of musical instruments.
"Write a rebuttal to the attached judgement on copyright protection of the Hang"
https://grok.com/share/bGVnYWN5_7924c613-5d3d-4e43-90bd-5b0ac9a7c96f
Note: This rebuttal is provided for illustrative purposes and should not be construed as legal advice. For a formal legal challenge, consultation with a qualified intellectual property attorney is recommended.
https://grok.com/share/bGVnYWN5_7924c613-5d3d-4e43-90bd-5b0ac9a7c96f
Note: This rebuttal is provided for illustrative purposes and should not be construed as legal advice. For a formal legal challenge, consultation with a qualified intellectual property attorney is recommended.
Grok
Copyright Protection of the Hang: A Rebuttal | Shared Grok Conversation
Write a rebuttal to the attached judgement on copyright protection of the Hang