1709 Blog: for all the copyright community

Wednesday, 17 August 2011

How fair is fair?

A couple of days ago, Birgit Clark from the IPKat team posted a piece on proceedings brought by Marcus Off, a German actor who dubbed Johnny Depp's Jack Sparrow character in the first three "Pirates of the Caribbean" films. Mr Off claims additional compensation for his performance under §§ 32a, 79 (2) (2) UrhG (German Copyright Act). You can read Birgit's post here. § 32a proceedings seem to be all the rage – in February, the OLG München (Higher Regional Court of Munich) had to decide a case concerning the title sequence of Germany's longest-running and most popular TV crime series "Tatort" (see Birgit's IPKat post here), and later this year the Bundesgerichtshof (Federal Court of Justice, BGH) is going to pass judgment on claims for additional compensation brought by the cameraman of famous German submarine thriller "Das Boot" (you can read Jeremy’s IPKat report on the early stages of the proceedings at first instance here).

So I think it is time to have a closer look at the provision in the German Copyright Act that is responsible for all those cases. § 32a UrhG is rather dryly entitled "Weitere Beteiligung des Urhebers" ("Further participation of the author"), but it is usually more emotionally referred to as the "fairness clause". What the fairness clause purports to do is the following: If an author has licensed his work (no such thing as a complete transfer of copyright under German law, remember) and his work turns out to be so successful that the consideration he received for granting the licence appears strikingly disproportionate in light of the profits generated from it, he receives a further equitable share of those profits.

Fairness v Bestseller

What is important to note is that the fairness clause was only implemented in 2002 and is a rather weird mix of retroactivitiy and prospectivity. On the one hand, it applies retroactively even to contracts concluded before 1 January 1966 (the entry into force of the UrhG). On the other hand, it applies only to circumstances that have arisen after 28 March 2002. So where does that leave us?

In each case where compensation for uses before 1 April 2002 is claimed, ex-§ 36 UrhG is applicable, the so called "bestseller clause". It is similar to § 32a UrhG, but requires that the agreed consideration be "grossly disproportionate" to the profits generated from the use of the work, a higher threshold than under § 32a UrhG. In addition, ex-§ 36 UrhG is understood to apply only if the parties did/could not foresee the success of the work, something that is expressly declared to be immaterial in § 32a (1) (2) UrhG.

Only in respect of compensation claimed for exploitations of the work from 1 April 2002 onwards does the more lenient § 32a UrhG come into play. However, the legislative materials on § 32a UrhG make it clear that particularly when it comes to films or other multimedia works, contributions that are of secondary importance for the work as a whole shall not usually be the subject of further compensation (the same was established case law in respect of ex-§ 36 UrhG). While the contribution need not be the cause of the work’s success, the legislator envisaged that it should primarily be substantial contributions that would lead to successful claims for fairness compensation. This is why the “Tatort” case failed. The court argued that the title sequence had a function similar to a logo or a trade mark or the cover of a book, but was of only minor importance for the films as such. Things might have been different if the sequence were extensively used elsewhere, but while there were instances of isolated exploitation of the title sequence, no striking disproportionality between the income generated and the consideration received could be established.

Das Boot

Let’s take a look at the chances of “Das Boot” lead cameraman Jost Vacano. “Das Boot” dates from 1981, so the first 21 years of exploitation are governed by ex-§ 36 UrhG and only the last 9 by § 32a UrhG. That does not sound promising. The film is still frequently shown on television and numerous DVD editions are readily available as well. Indeed, an anniversary edition priced at 30.99 EUR is going to hit the stores on 15 September. That means the film is still being steadily exploited after 30 years. That does sound promising. The cameraman’s contribution was also considerable, that again works in his favour. I would guess it is quite probable that the BGH will affirm the judgments in favour of Mr Vacano that were handed down at first instance and on appeal. The not so good news is that he had to raise a claim for information first because the other side were not telling how much income they made from the film. So assuming he wins, his lawyers must then try to figure out how much further compensation would actually be fair and start suing all over again. Nightmare (for those fluent in German, you might also want to read this interesting article by Patrick Jacobshagen, available here).

Pirates of the Caribbean

Now, the first "Pirates of the Caribbean" film hit the cinemas in 2003, so there's a clean-cut § 32a UrhG case for you. At first instance, the Kammergericht Berlin dismissed Marcus Off's claims, though. As Birgit stated in her post, "that the court's assessment of the content of the film as consisting of mostly special effects (and rather little acting) might surprise some of the viewers" - it is important to stress, however, that we are talking about Mr Off's acting here. From what I remember of the films, Johnny Depp does an impressive bit of swaying, swaggering, smouldering and swashbuckling; but he does not do quite so much in the way of talking. In other words, there was not as much to do for Mr Off as there might have been. Also, his job was basically to speak the text given to him in a voice imitating Johnny Depp's way of portraying the Jack Sparrow character. He did that really well, no doubt about that, but I share the view that it probably is not enough in this special case, especially given that he spent only 12 days in total dubbing the three films.

Another point worth adding is that the court held that in respect of the first film, claims for further compensation were time-barred. Mr Off must have become aware of the extraordinary financial success of the first film in 2004, so he would have had to raise such claims by 31 December 2007.

Closing Remarks

§ 32a UrhG and ex-§ 36 UrhG were drafted with the main contributors to successful works in mind - the author of a book or a film script, the director, the lead actors, etc. What they were not supposed to achieve was that everyone involved in a successful work - extras, session musicians, composers of TV series theme tunes - should be able to turn up and demand an additional piece of the cake. Even where there is a valid claim inasmuch as significant contribution is concerned, though, it will be difficult to determine whether the consideration received was "strikingly disproportionate" to the profits generated, and equally difficult to calculate the further compensation the author or performer should receive.

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