Last year, "Tatort", which has been a household name for television viewers for 40 years, was the subject of a copyright case before the Munich I Regional Court. Its judgement, against which both parties had appealed, has now been overturned for the most part by a senate 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 claimed to be the sole author of the so-called storyboard forming the basis of the opening credits as well as co-author in the filming of the opening credits. The plaintiff claimed that there was a conspicuous or gross disproportion between the lump sum remuneration of DM 2,500 paid to the plaintiff more than forty years ago and the benefits accruing to the defendants from the exorbitant use of the "Tatort" opening credits over a period of four decades, which should be compensated for by further payments.
In its judgement of 24 March 2010, the District Court largely followed this, granting the plaintiff both the right to be named as the author and a comprehensive right to information in preparation for her claim for payment.
The Higher Regional Court now saw the matter largely differently.
It upheld the decision of the Regional Court only insofar as the defendants had been prohibited from making the claim and/or having it made that the "Tatort" opening credits had been created by a named employee of Bayerischer Rundfunk/TV. According to the Higher Regional Court, this was an act violating the plaintiff's moral right and justifying its claim for injunctive relief, as it was not in accordance with the facts that the person named by the defendants had sole ownership of the "Tatort" credits.
With regard to the additional remuneration claimed by the plaintiff, the Higher Regional Court dismissed the action on the defendant's 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 requirements to be fulfilled in the plaintiff's case. In the opinion of the Upper District Court, the view of the Regional Court that all works eligible for copyright protection are subject to an obligation of the work user to pay additional remuneration in the event of a conspicuous disproportion between the use of the work and the consideration paid to the author for it cannot be upheld as a general rule. According to the express intention of the legislature, the application of the "fairness clause" (Section 32a UrhG) should be subject to the proviso that the contribution of the author claiming subsequent remuneration is not only of minor importance for the work as a whole.
The opening credits of "Tatort" had only a characterising function within the overall work of "Tatort" crime series and pointed the viewer in a striking way to the following programme. The fact that the opening credits of "Tatort" had a high degree of recognition among the population was primarily due to the regular broadcasting of the unchanged opening credits over a period of 40 years. However, this aspect did not justify the assumption that the opening credits in question were an essential contribution to the overall work, namely the subsequent crime film. The frequent use of the opening credits of "Tatort" was primarily due to the high level of acceptance which the films of the crime series "Tatort", which followed the opening credits and usually lasted 90 minutes, found among the audience. There could be no reasonable doubt that the viewer did not watch "Tatort" because of the opening credits. The opening credits in dispute, which were limited to a reference function and did not have any further influence on the subsequent film, were to be regarded as a merely subordinate contribution to the overall work, the evaluation of which did not require fairness compensation.
Moreover, the Munich Higher Regional Court also set aside the Regional Court's judgment insofar as it prohibited the defendants from using the "Tatort" opening credits in dispute without naming the plaintiff as the author.
It is true, as the Higher Regional Court found, that the defendants could not oppose the plaintiff's claim to naming, but they could oppose an industry practice to the contrary, according to which, due to the large number of participants in a television series and the limited possibilities of naming them in the context of opening or closing credits, it is generally customary, taking into account the interests of both the participants in the film project and the viewers, to list only the names of those significantly involved in the creation of the film work in the opening or closing credits.
According to the Higher Regional Court, under the circumstances of the specific case, the defendants should also no longer have expected that the plaintiff, who had not complained to the defendants about the lack of naming of the author for many years, would now assert her claim to naming as the author, contrary to the defendants' practice, which she had not objected to for decades.
In the ratio of winning to losing, the plaintiff was ordered to pay 9/10, the defendants 1/10 of the costs of the legal dispute.
(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, Wilhelm Schneider, Presiding Judge at the Higher Regional Court, Press Spokesman of the Munich Higher Regional Court for Civil Matters
Goldberg Attorneys at Law
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law (IT law)
E-mail: info@goldberg.de
