The I. Civil Senate of the Federal Court of Justice, which is responsible for copyright law, has ruled in two cases that the operators of a news channel and an internet portal must provide information about the advertising revenue generated on the day on which they culpably infringed the copyright-protected right of the producer of a video film by publishing it.
The defendant in the proceedings I ZR 122/08 operates a news channel. On 29 June 2007, it broadcast several times a video film showing the fatal parachute jump of the politician Jürgen Möllemann, which the plaintiff had recorded from on board the aircraft.
The defendant in the proceedings I ZR 130/08 maintains an internet portal on which it also made this video film publicly accessible on 29 June 2007.
The plaintiff has demanded information from the defendants as to what advertising revenues the defendants generated on the day of the film's release in order to be able to quantify his claim for damages.
The district court dismissed the claims. The claims for information were successful before the court of appeal.
The Federal Court of Justice confirmed the decisions of the Higher Regional Court according to which the plaintiff is entitled to information against the defendants and only limited the scope of the information claims. The defendants unlawfully and culpably infringed the plaintiff's right as producer of the video film by broadcasting it without permission. They are therefore obliged to pay damages to the plaintiff. The obligation to pay damages includes - depending on the method of calculation chosen by the plaintiff - the handing over of the profit that the defendants have made through the publication. In order to be able to calculate the extent of this profit, the plaintiff needs information on the advertising revenue generated by the defendants on the day of publication. Admittedly, the defendants have argued that the revenue generated by the broadcasting of advertising on that day was unrelated to the news published on the same day because the customers had already ordered the advertising months in advance. In the view of the Federal Court of Justice, however, this is not relevant in determining the infringer's profit. The advertisers expected the defendants to place the advertisements in a news environment. The video film broadcast on the day in question also counted as such. The fact that the defendants could have broadcast other news instead of the video film does not break the connection between the infringement of the plaintiff's right and the advertising revenue generated by the defendants.
Judgment of the BGH of 25 March 2010 - I ZR 122/08
OLG Hamm - Judgment of 24 June 2008 - 4 U 43/08
LG Bochum - Judgment of 31 January 2008 - 8 O 312/07
and
Judgment of the BGH of 25 March 2010 - I ZR 130/08
OLG Hamm - Judgment of 24 June 2008 - 4 U 25/08
LG Bochum - Judgment of 13 December 2007 - 8 O 311/07
Source: Press release of the BGH
Goldberg Attorneys at Law
Lawyer Michael Ullrich, LL. M. (Information Law)
Specialist lawyer for information technology law
E-mail: m.ullrich@goldberg.de
