The First Civil Senate of the Federal Court of Justice, which is responsible for copyright law, has ruled in two separate cases that the operators of a news channel and an internet portal must disclose the advertising revenues generated on the day they culpably infringed the copyright-protected rights of a video film producer through its publication.
The defendant in proceedings I ZR 122/08 operates a news channel. On June 29, 2007, it repeatedly broadcast a video film depicting the fatal parachute jump of politician Jürgen Möllemann, which the plaintiff had recorded from aboard the aircraft.
The defendant in proceedings I ZR 130/08 operates an internet portal, on which it also made this video film publicly accessible on June 29, 2007.
The plaintiff initiated legal action against the defendants, seeking disclosure of the advertising revenues they generated on the day the film was published, in order to quantify his claim for damages.
The Regional Court dismissed the claims. However, the actions for disclosure were successful before the appellate court.
The Federal Court of Justice affirmed the decisions of the Higher Regional Court, which established the plaintiff's entitlement to a claim for disclosure against the defendants, while merely restricting the scope of these claims. The defendants unlawfully and culpably infringed the plaintiff's rights as the producer of the video film through its unauthorized broadcast. Consequently, they are obligated to compensate the plaintiff for damages. This obligation to pay damages encompasses – depending on the calculation method selected by the plaintiff – the disgorgement of profits that the defendants accrued through the publication. To ascertain the extent of these profits, the plaintiff requires data on the advertising revenues generated by the defendants on the day of publication. The defendants had contended that the revenues derived from broadcasting advertisements on that specific day bore no relation to the news published concurrently, as clients had commissioned the advertising months in advance. However, in the Federal Court of Justice's opinion, this argument is immaterial to the determination of the infringer's profit. Advertisers anticipate that the defendants will position advertisements within a news context. The broadcast video film was also considered part of this context on the day in question. The fact that the defendants could have aired other news content instead of the video film does not sever the causal link between the infringement of the plaintiff's rights and the advertising revenues generated by the defendants.
Judgment of the Federal Court of Justice of March 25, 2010 – I ZR 122/08
Higher Regional Court Hamm – Judgment of June 24, 2008 – 4 U 43/08
Bochum Regional Court – Judgment of January 31, 2008 – 8 O 312/07
and
Federal Court of Justice – Judgment of March 25, 2010 – I ZR 130/08
Hamm Higher Regional Court – Judgment of June 24, 2008 – 4 U 25/08
Bochum Regional Court – Judgment of December 13, 2007 – 8 O 311/07
Source: Press release of the Federal Court of Justice
Goldberg Rechtsanwälte
Lawyer Michael Ullrich, LL. M. (Information Law)
Specialist Attorney for Information Technology Law
E-mail: m.ullrich@goldberg.de
