The First Civil Senate of the Federal Court of Justice, which is responsible, inter alia, for copyright law, has confirmed and continued its case law on the appropriate remuneration of translators (BGH, judgment of 7 October 2009 - I ZR 38/07, BGHZ 182, 337 - Talking to Addison, cf. press release no. 207/2009 of 7 October 2010).
The plaintiff translator had undertaken to translate a non-fiction book from English into German for the defendant publisher in October 2002. He granted the publishing house comprehensive rights of use to his translation. In return, he received the agreed fee of € 19 for each page of the translated text. Furthermore, he was promised an additional fee of 0.5% of the net retail price in the event that more than 15,000 copies of the hardcover edition were sold. According to the contract, he was to participate in the publisher's proceeds from the granting of paperback and joint book licences with 5% of the net publisher's share.
According to the provisions of the Copyright Act in force since July 2002, the author - this includes the translator - can in principle only demand the agreed remuneration for the granting of rights of use. However, if the agreed remuneration is not appropriate, he can demand that his contractual partner agrees to a corresponding adjustment of the contract.
The plaintiff took the view that the agreed fee was unreasonable. He therefore demanded that the defendant amend the translation contract. The Regional Court and the Court of Appeal dismissed the action. In response to the plaintiff's appeal, the Federal Supreme Court overturned the decisions of the lower courts and awarded the plaintiff a higher fee.
The Federal Court of Justice has confirmed its case law according to which the translator of a work of fiction or non-fiction, who is only promised a customary and appropriate page fee as a guarantee fee for the granting of all rights of use to his translation, unlimited in time and comprehensive in content, must also participate in the proceeds of the books sold on a percentage basis as of a certain print run. This additional profit-sharing starts with a sold edition of 5,000 copies of the translated work and normally amounts to 0.8% of the net retail sales price for hardcover editions and 0.4% for paperbacks. The Federal Court of Justice has now clarified that the additional remuneration is only payable from the 5,000th copy sold of the respective edition in the case of a first exploitation as a hardcover edition and a second exploitation as a paperback edition. It has also made it clear that only a page fee that lies outside the range of page fees that may be considered customary and reasonable in an individual case can justify an increase or decrease in the percentage of the additional remuneration.
The Federal Court of Justice has also affirmed that such a translator may claim an equitable share in any proceeds that the publisher obtains by granting or transferring to third parties the right to use the translated work. This includes, for example, the economically significant revenues of the publisher from the granting of licences for paperback editions of the work. The Federal Court of Justice (BGH) has decided - in deviation from its previous case law - that the translator is generally entitled to a share amounting to one fifth of the share of the author of the foreign language work in these proceeds.
Judgment of the Federal Court of Justice of 20 January 2011 - I ZR 19/09 - Destructive Emotions
Lower courts:
LG Munich I - Judgment of 11 October 2007 - 7 O 23652/06
OLG Munich - Judgment of 27 November 2008 - 29 U 5320/07
published in ZUM-RD 2009, 268 = AfP 2009, 145
Source: Press release of the BGH
Goldberg Attorneys at Law 2011
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law (IT law)
E-mail: info@goldberg.de
