Sink or swim - BGH decides "Das Boot" fairness compensation claim

Since 2008 famous German cameraman Jost Vacano has been seeking fair remuneration for his input into the making of World War II submarine drama "Das Boot" (trailer here) from the filmmaking company Bavaria Film and its related companies (see previous IPKat post here relating to the first instance claim). Mr Vacano’s work was nominated for an Academy Award and included the development of new innovative filming techniques in respect of lighting and camera equipment.

By way of a so-called action by stages (Stufenklage), where issues arising at various stages of action are tried separately, Mr Vacano is demanding that his contracts with Bavaria of 1980 and 1981 be adjusted in light of the global success of the film by way of a retroactive share of the revenue, inter alia, for the DVD and video sale exploitation. While he was recognised as joint author of Das Boot and had conceded limited exploitation rights to Bavaria Film, he argued that the agreed lump-sum remuneration for that concession was severely disproportionate to the revenue derived from the commercial exploits by Bavaria Film. He felt that he was therefore owed additional compensation from Bavaria based on §32a of the German Copyright Act (UrhG) which provides for a so-called “fairness compensation” in cases where there is a striking disproportion between the fee paid and the success of the work or creation. By way of a claim to information Vacano sought access to the respective user licensing and related agreements which would then enable him to calculate the exact amount of compensation. This is the third high profile German case in recent times relating to “fairness compensation” (see previous reports here and here), albeit decided by lower instance courts.

After decisions by the Regional Court of Munich I and the court of appeal, the Higher Regional Court of Munich, the Bundesgerichtshof had to assess whether Mr Vacano had the right of action concerning a claim to information (somewhat akin to disclosure) as co-author of the work, the defendant’s duty to provide this information and the extent of such a claim of information.

The Higher Regional Court of Munich had granted Mr Vacano’s claim to information (the first stage) for the time after 28 March 2002, as there had been tangible evidence for an indication that he had a claim to further compensation. For the time after 28 March 2002, however, the Munich court had denied a claim to information since the transitional provision of §132 (3) S. 2 UrhG for old contracts only allowed the consideration of revenue and commercial advantages that the exploiter of the work had obtained after 28 March 2002.

In its decision of 22 September 2011 (case reference: I ZR 127/10) which was only published last week, the Bundesgerichtshof confirmed that an author will have a claim to information (Auskunft) if there are clear indications that he had a claim based on §32 a UrhG. As the main cameraman the claimant was co-author of the work “Das Boot” and  could thus bring such a claim himself and demand this type of information himself -- and for himself.

Upon the appeal of the defendant film producing company, the court found that the appeal court’s assumptions that there was tangible evidence of a severe disproportion in the sense of §32 a UrhG, were based on insufficient facts. The court of appeal’s decision that Mr Vacano had a claim to information for the time after 28 March 2002 could thus not be upheld. The court of appeal, the Higher Regional Court of Munich, therefore now has to undertake a renewed assessment as to whether there had been tangible evidence based on verifiable facts that in light of the overall relationship between the claimant and defendant there was a severe disproportion between the agreed payment of the claimant and the defendant’s respective revenue and commercial advantages.

Upon the claimant's appeal, the Bundesgerichtshof disagreed with the court of appeal and concluded that the claimant could also have a claim to information for the time before 28 March 2002. For the assessment of a striking disproportion in the sense of §32 a UrhG all revenue, that been accrued before 28 March 2002, had to be considered. Decisive for the interpretation of the ambiguous term “circumstance” (Sachverhalt) in the sense of §132 (3) S. 2 UrhG. The appeal court had interpreted this term as encompassing the severe disproportion mentioned in §32a UrhG as well as the actual circumstance, which had led to the disproportion. However, the Bundesgerichtshof interpreted this term differently and included merely exploitation actions (Verwertungshandlungen). §132 (3) S. 2 UrhG thus only meant that in cases were all prerequisites of §32 a UrhG were given, a further adequate share only of the revenue and advantage of the exploitation actions was owed, which had happened after 28 March 2002. For the assessment of a claim based on §32 a UrhG, the BGH held that it was immaterial in the light of §132 (3) S. 2 UrhG whether the striking disproportion in the sense of §32 a UrhG had only existed after 28 March 2002 or whether it had already existed on that day and had further existed after 28 March 2002.

As such, the Bundesgerichtshof sent the case back to the court of appeal, the Higher Regional Court of Munich, for a further hearing and decision. This decision can be retrieved here in its entirety (in German). Some more background on the idea and evolution of the idea of “fairness compensation” set out in §32 a UrhG and the former of §36 UrhG (old version) can be found here, elegantly explained by the IPKat's friend Thorsten Lauterbach.