Tatort - no "fairness compensation" for co-creator of TV series intro

In a recent decision (case reference: 29 U 2749/10 of 10 February 2011) the Higher Regional Court of Munich had to decide on a claim for additional compensation brought by the co-creator of the intro to one of Germany’s most famous TV crime series: Tatort (in English: crime scene).

Tatort, a 90 minute crime story, is shown on Sunday nights and produced by different local stations of Germany’s broadcasting station ARD with different local police investigators solving fictitious crimes in various parts of Germany (and sometimes also Austria). However, no matter which detectives are investigating or which local ARD station produces the respective episode of the series, in almost 40 years (!) of Tatort one part of the series never changed: the series’ iconic intro - which can be watched here.

The co-creator of this intro, a graphic designer and filmmaker, had been paid a fee of 2,500 Deutsch Marks (roughly £1200, not considering inflation) when the series was first aired about forty years ago. She claimed that she was the sole author of the underlying storyboard and co-creator of the intro. Bearing in mind the success of the Tatort series over the last four decades, the claimant now found that 2500 Deutsch Marks was not a fair consideration for her contribution. She thus decided to claim a supplemental fee from the ARD under § 32a of the German Copyright Act (UrhG) which provides for a so-called “fairness compensation” in cases where there is a disproportion between the fee paid and the success of the work or creation.

While the Regional Court of Munich I (LG München I) had – rather surprisingly - decided in favour of the claimant, the Higher Regional Court of Munich (OLG München) on appeal now found in favour of the defendant ARD TV station. The LG München I had found that the payment of a flat fee had been in severe disproportion to time of exploitation and held that the creator of the intro should be entitled to claim under § 32a UrhG. In its decision of 10 February 2011, however, the OLG München agreed with the defendant and dismissed the claim. The appeal court held that the intro was not a separate work in its own right but only had a ‘signaling function’ and no direct impact or influence on the commercial success of the Tatort series so that § 32a UrhG did not apply. The court further explained that viewers did not watch the Tatort series just because of the intro.

Classic Tatort detective Schimanski
(played by  Götz George)

The judges admitted that the intro was well-known to viewers. However, this was because it had been shown regularly on television for 40 years and did not mean that this was a case where a fairness compensation under § 32a UrhG had to be paid. Since the wording of § 32a UrhG does not expressly list who should be able to claim under the provision, the court assessed this question by referring to the perceived intent of the legislator. Here, the OLG München took the view that the application of § 32a UrhG had to be reserved for such cases where the claimant’s ‘contribution to overall work was not only of merely subordinate importance’.  

The OLG dismissed the claim to be named as an author in the intro deciding that the claimant’s right to be named as one of the creators had been forfeited after four decades had passed since the intro’s creation. The court also held that not every contributor to the series could be named and it was customary to only list the main contributors. However, the judges confirmed that the claimant had a right to prevent others from being named as sole authors of the intro; it appears that ARD had named one of its employees as the sole creator. The court found that this incorrect statement infringed the rights of the claimant as the sole and true copyright holder. A further appeal has not been allowed.

The IPKat comments: § 32a UrhG and its predecessor provision § 36 UrhG old version ( the "Bestseller clause") are some of the Germany copyrights most controversial provisions. It is often argued that § 32a UrhG was not phrased as precisely as it should have been. The court’s press release can be retrieved by clicking here (in German).