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.”
8 comments
Cardiff 101, could you get any more petty?
C101 was very reasonable. They were fine with the money going to maintain the area around the kook, and also getting proceeds to be used in Cardiff. This other park charity is not for Cardiff, and is not known. I googled their name. I got some hits, including a Facebook page (with very few likes). However, many of these charities are not efficient and the money goes to office holders, parties for office holders, etc. Something does not seem right here, and I wonder where the proceeds are really going. C101 owns the copyright, and they should get to enforce it.
This is crazy. I highly doubt that Cardiff 101 “fined” anyone “$1600’s” for taking a picture of their dog in front of the Kook or that C101 sued the “kooks cafe” and made them “mysteriously disappear”, as Lebherz claims.
And La Tessieri should know that Cardiff 101 did commission and created the statue and owns the rights to the image that is being used to make money.
From Instagram comment from clg_marco: “Cardiff 101 is a charity that owns the rights to the Cardiff Kook. Race promoter screwed them out of $$ knowingly. He’ll get what he deserves.”
This should not have happened, I am sure Cardiff 101 did not want any of this to happen.
I don’t see Lebherz as the victim.
This family has been scamming for years. Both pictured Lebherz and Brewer scammed their mortgage companies. They charge $40 per person and make well over $50,000 on this race while getting volunteers under the guise that they are actually donating to a charity. Generations of pulling scams is finally catching up with them.
This is the most ridiculous thing I have heard! Please stop the bantering, get on with the race and figure out something to make it work for everyone. Why does Cardiff 101 hold this name hostage? It was invented by the people- not Matthew or the association. This is a great community event and there should not be a charge to use the kook name. These guys are working hard to have this be fun for everyone. Is this really all about money????? I am proud to live in Cardiff but hearing this nonsense really makes me sad!!!
Don’t forget how mysteriously the “kook cafe” next door to VG donuts disappeared and closed their doors!!!! I’m positive they were facing the same lawsuit from Cardiff 101!!!!! And the Sign Shop in Encinitas across from La Paloma (a local business for decades) took a picture of their dog (who’s been sitting outside of the store since I was old enough to remember) in front of the Kook, hung the picture in their store window and was fined $1600’s by Cardiff 101!!!!!!
They are disgrace to this community!!!
I’m interested to see how the lawsuit effects Sunday’s race. Will there be tape over the race name and logo? I’m picking up my race bib and T-shirt tomorrow.
Oh for crissake people, give it a rest. It’s not exactly the Lincoln Memorial, the Statue of Liberty or the Empire State Building so put a sock in it with the copyright insistence. The Cardiff Kook has been a subject of well deserved scorn, derision and ridicule since its unveiling, and the Cardiff 101 MainStreet Association’s (Cardiff has a Main Street?) attempt to endow it with some sort of relevancy is laughable at best.
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