Cardiff 101 sues race for copyright infringement

Cardiff 101 sues race for copyright infringement
From left: Cardiff Kook 10k/5k race co-founder Steve Lebherz, race winner Okwaro Rauro and race co-founder Seth Brewer during the awards ceremony following the 2014 race. The Cardiff 101 MainStreet Association has sued the organizers of the Cardiff Kook Run for $150,000 for using the likeness of the race's namesake statue without the organization's permission. File photo by Tony Cagala

ENCINITAS — The Cardiff 101 MainStreet Association has sued the organizers of the Cardiff Kook Run for $150,000 for using the likeness of the race’s namesake statue without the organization’s permission.

The copyright infringement suit, which was filed in federal court on Jan. 25, comes just days before the fifth running of the 5K/10K race is scheduled for Feb. 7 and reveals a rift between race organizers and the main street association that was previously not made public.

The lawsuit alleges that race organizer Steve Lebherz has willingly ignored cease-and-desist demands from Cardiff 101 after Lebherz cut ties between the race and Cardiff 101 after nearly four years in late 2015.

“He is willfully refusing to abide by and thumbing his nose at Cardiff 101’s property rights,” said Malte Farnaes, an attorney who serves as a board member of Cardiff 101.

Lebherz, who called the lawsuit “bullying tactics,” said he agreed to stop using the statue’s likeness immediately after the race, but couldn’t stop using it this late in the planning process.

“We told them we would cease and desist on Feb. 8, and that we would change the name as quick as we can,” Lebherz said. “We don’t think asking for 30 days is unreasonable for something we have used for four years and 11 months.”

Cardiff 101 owns the copyright for use of the likeness of the statue, which is officially called “Magic Carpet Ride,” but is best known by its nickname, the “Cardiff Kook,” and the many pranks associated with the infamous surfer statue.

The statue’s creator, Encinitas surfer Matthew Antichevich, transferred the copyright to the organization shortly after completing it in 2007 to help it raise money for the statue’s maintenance and for other community activities. Cardiff 101 started actively enforcing the copyright in 2013, as the group began requiring entities wishing to use the image of the statue to enter into licensing agreements, which they in turn used to help fund maintenance efforts for Carpentier Parkway.

The first Cardiff Kook Run was held in 2012, and a year later the organizers entered into a one-time licensing agreement for $8,000 for use of the likeness for that year. Lebherz hasn’t entered into any agreements since, but proceeds from the race have been used for maintenance and landscaping around the statue, including a xeriscape garden, block work and clean up.

Lebherz said that he felt that the race had raised more than enough money to accomplish its original goal of maintaining the Kook statue, and looked for another local nonprofit to work with. He sent a letter to Cardiff 101 in late 2015 to notify the group of his intentions to partner with Patrons of Encinitas Parks, a nonprofit that raises funds for the city’s local parks.

“We sent them a letter saying that the mission was complete, and we were moving forward with another nonprofit,” Lebherz said. “Out of nowhere, around Christmas, I received a letter from the executive director, Annika (Walden), and she asked if we were going to partner with them. I reiterated that we were going in a different direction. Almost the same day, they sent us a letter that basically said if we were not their partner, we have to cease and desist using the logo because we would have a copyright infringement.”

Walden, reached Wednesday, referred all questions to Farnaes.

According to the lawsuit, Lebherz has used the Kook image on no less than 25 signs, a billboard, medals, t-shirts, websites, racing bibs, entry processing forms, and other promotional materials and products for sale.

Lebherz said Cardiff 101 said he would have to pay $10,000 to use the statue’s likeness. He refused and offered to stop using the likeness after the race. Shortly thereafter, Cardiff 101 filed the federal lawsuit.

Farnaes said that Lebherz was made aware that he was legally required to either enter into another licensing agreement or stop using the likeness. By refusing, he said, he forced the organization’s hand into the lawsuit.

“Cardiff 101 MainStreet is not in the business of litigating lawsuits,” Farnaes said. “But we can’t have someone come into our community and take from us. It wouldn’t be fair to us and wouldn’t be fair for generations to come.”

Farnaes said the race itself is not a target of the lawsuit.

“The race is going to go on this weekend, and we are very supportive of the concept of the race, and as you know, we host a lot of amazing events,” Farnaes said. “This is simply about the use of the image without a copyright.”

Lebherz said an unfavorable judgment in the lawsuit would cripple the race and likely bankrupt him.

“We are not a very big race, we raise about $5,000 to $7,000,” Lebherz said. “If we were to lose the lawsuit, it would be the end of the race.”


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