A freelance full-time journalist who provides a publisher with photo contributions published in daily newspapers for 10 euros net per contribution may be entitled to a claim for subsequent remuneration under Section 32 of the Copyright Act (UrhG). This can also be calculated for the years 2010 to 2012 according to the Common Remuneration Rules on image fees for freelance full-time journalists. This was decided by the 4th Civil Senate of the Higher Regional Court of Hamm in a judgement of 11 February 2016, largely confirming the first instance decision of the Regional Court of Bochum.
The plaintiff, a journalist from Hagen, had been working as a photographer for the defendant newspaper publisher from Essen since 2000. At the request of the defendant, he essentially supplied photo contributions from the Märkischer Kreis, which the defendant published in various editions of daily newspapers it published. For these he received a net fee of 10 euros, irrespective of the size of the published picture and the circulation of the respective newspaper. In 2010, the defendant published 1,329 picture contributions by the plaintiff, in 2011 1,277 picture contributions and in 2012 891 picture contributions.
In the legal dispute, the plaintiff demanded subsequent remuneration from the defendant for these picture contributions pursuant to Section 32 UrhG and calculated this according to the Common Rules on Remuneration for Picture Fees for Freelance Full-time Journalists - less the amounts paid. The Common Compensation Rules assess the picture fees according to the size of the picture and the circulation of the newspaper, whereby the net fees for first printing rights range between 19.50 euros (smaller than one-column photos in a circulation of up to 10,000) and 75.50 euros (four-column photos and larger in a circulation of over 200,000).
The action for remuneration was successful. The 4th Civil Senate of the Higher Regional Court of Hamm awarded the plaintiff subsequent remuneration totalling approx. 79,000 euros pursuant to Section 32 UrhG. According to the court, the plaintiff was the author of the photo contributions supplied and the defendant was his contractual partner. The claim was not precluded by a superior collective agreement. Until 2012, the plaintiff had not been a member of the German Association of Journalists.
For the photo contributions provided by the plaintiff in the years 2010 to 2012, the defendant had not paid an appropriate fee of 10 euros net per contribution. In this respect, the parties' contract was to be adjusted, whereby the plaintiff could sue directly for payment of the appropriate remuneration. The Common Remuneration Rules on image fees for freelance full-time journalists had only come into force in 2013. Nevertheless, they could be used as a benchmark for reasonable remuneration. In the present case, the rates provided for the granting of a first printing right were decisive. The defendant had obviously placed the orders with the plaintiff in expectation of a priority of publication to be granted to it. Ultimately, even the collective agreement rules on remuneration could serve as a guide. According to these, the remuneration demanded by the plaintiff was reasonable even if a first printing right had not been agreed.
Judgment of the 4th Civil Senate of the Higher Regional Court of Hamm of 11.02.2016 (4 U 40/15), not final (BGH I ZR 85/16) (as of 23.05.2016).
Source: Press release of the Higher Regional Court of Hamm, Christian Nubbemeyer, Press Secretary
Goldberg Attorneys at Law 2016
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
E-mail: Info@goldberg.de
