The 'Tatort' series, a household name for television viewers for 40 years, was the subject of copyright litigation before the Munich I Regional Court last year. Its judgment, which both parties had appealed, has now been largely overturned by a panel of the Munich Higher Regional Court.
The subject matter of the legal dispute (with an amount in dispute of €150,000) was claims for subsequent remuneration and information under copyright law as well as claims for naming of the author in connection with the opening credits of the popular crime series, in which the eye part of a victim, a crosshair and the legs of a perpetrator running away can be seen.
The plaintiff, a graphic artist, book illustrator, animator and author, had sued Bayerischer Rundfunk and Westdeutscher Rundfunk, two public broadcasters within the ARD network, by way of a so-called "step-by-step action" to refrain from naming another person as the author and to be named in the opening credits of the crime series as its author, as well as to receive further remuneration for the use of the opening credits.
The plaintiff asserted that she was the sole author of the storyboard forming the basis of the opening credits and a co-author in the filming of the opening credits. She claimed a conspicuous or gross disproportion existed between the lump-sum remuneration of DM 2,500 paid to her more than forty years ago and the benefits accrued to the defendants from the exorbitant use of the 'Tatort' opening credits over a period of four decades, which ought to be compensated by further payments.
The Regional Court had largely concurred with this in its judgment of March 24, 2010, by both granting the plaintiff the right to be named as the author and allowing a comprehensive claim for information to prepare her payment claim.
The Higher Regional Court, however, now took a largely different view of the matter.
It only confirmed the Regional Court's decision insofar as the defendants had been prohibited from asserting and/or having asserted that the 'Tatort' opening credits were created by a specifically named employee of Bayerischer Rundfunk/Television. This, according to the Higher Regional Court, constituted an infringement of the plaintiff's moral rights and established her claim for injunctive relief, as it did not correspond to the facts that the person named by the defendants held sole authorship of the 'Tatort' opening credits.
Regarding the post-remuneration claimed by the plaintiff, the Higher Regional Court dismissed the action upon the defendants' appeal.
In detail:
Under German copyright law, the author who has granted a right of use to another on terms which result in the agreed consideration being conspicuously disproportionate to the income and benefits derived from the use of the work, taking into account the author's overall relationship with the other, has a claim to, that the other party undertakes to agree to an amendment of the contract by which the author is granted a further fair share according to the circumstances (so-called fairness compensation, Section 32a UrhG, formerly regulated in the "bestseller paragraph" of Section 36 UrhG a. F., which formulated other requirements for a share in the proceeds.F.). It is irrelevant whether the contracting parties foresaw or could have foreseen the amount of the revenues or benefits generated. If there are clear indications of a corresponding claim, the author may demand information and, if necessary, invoicing in order to determine the further prerequisites of this claim and to be able to calculate the remuneration to be paid.
The Higher Regional Court did not consider these prerequisites to be met in the plaintiff's case. The Regional Court's view that all copyrightable works are subject to a post-remuneration obligation on the part of the user in the event of a conspicuous disproportion between the use of the work and the consideration paid to the author for it, cannot, in the opinion of the Higher Regional Court, be upheld in such a sweeping manner. According to the legislator's intent, the application of the 'fairness paragraph' (Section 32a UrhG) should, as expressly stated by the panel, be subject to the proviso that the contribution of the author claiming post-remuneration to the overall work is not merely of subordinate importance.
The 'Tatort' opening credits merely serve an identifying function within the overall 'Tatort' crime series and distinctively alert the television viewer to the subsequent broadcast. The high degree of public recognition of the 'Tatort' opening credits is primarily attributable to the regular broadcast of the unchanged credits over a period of 40 years. This aspect, however, does not justify the assumption that the opening credits at issue in the proceedings constitute a substantial contribution to the overall work, namely the subsequent crime film. The frequent use of the 'Tatort' opening credits is primarily attributable to the high acceptance among the audience of the typically 90-minute films of the 'Tatort' crime series that follow the credits. There can be no reasonable doubt that television viewers do not watch 'Tatort' because of the opening credits. The opening credits at issue, which are limited to an indicative function and have no further influence on the subsequent film, are ultimately to be regarded as merely a subordinate contribution to the overall work, the exploitation of which does not necessitate a fairness adjustment.
Furthermore, the Munich Higher Regional Court also overturned the Regional Court's judgment insofar as it prohibited the defendants from using the 'Tatort' opening credits at issue without attributing the plaintiff as the author.
While, as the Higher Regional Court found, the defendants could not assert an express waiver against the plaintiff's claim for attribution, they could invoke a contrary industry practice, according to which, due to the multitude of contributors to a television series and the limited possibilities of naming them in opening or closing credits, it is generally customary, considering the interests of both those involved in the film project and the viewers, to list by name only those significantly involved in the creation of the film work in the opening or closing credits.
Under the circumstances of the specific case, the defendants also, according to the Higher Regional Court, should no longer have had to expect that the plaintiff, who had not objected to the lack of author attribution by the defendants for many years, would now assert her claim for author attribution, contrary to the defendants' practice which she had not challenged for decades.
In proportion to their success and failure, the plaintiff was ordered to bear 9/10, and the defendants jointly and severally 1/10, of the costs of the litigation.
(The reference number of the decision of the Higher Regional Court of February 10, 2011 is:
29 U 2749/10; the appeal was not admitted; however, the judgment is not yet final).
Source: Press release of the Munich Higher Regional Court (OLG), Wilhelm Schneider, Presiding Judge at the Higher Regional Court, Press Spokesperson of the Munich Higher Regional Court for Civil Matters
Goldberg Rechtsanwälte
Attorney Michael Ullrich, LL.M. (Information Law)
Specialist Lawyer for Information Technology Law (IT Law)
Email: info@goldberg.de
