Court as "film critic"? No "fairness compensation" for German dubbing actor

Our readers may (or may not) know that many English-speaking blockbusters will be dubbed into other languages when shown in some non-English speaking countries. Die Sueddeutsche Zeitung now reports on a claim for additional compensation brought by German "dubbing actor" Marcus Orff, who lent his voice to Johnny Depp for the German language version of Pirates of the Caribbean.

The Berliner Kammergericht (case reference 24 U 2/10 of 29 June 2011) had to decide on Mr Orff’s claim for additional compensation based on §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. Bearing in mind the success of this particular movie franchise at the German box office, its related DVD releases and the TV licensing of the films Mr Orff took the view that his fee of roughly 18,000 Euros was not a fair consideration for his contribution: as the German voice of the lead actor he had made a decisive contribution and should be paid a supplemental fee of 180,000 Euros.

The Berlin court found that, while there could theoretically be cases where a fee received was disproportionate to the success of a film and where an artist could thus demand such a supplemental fee, this was not the case here. The court stressed that a dubbing artist, who lends his voice to a lead actor, has no claim for a supplemental fee as “fairness compensation” where the dubbing actor's actual contribution is of merely ancillary importance to the film. According to the court, this will apply where the film consists mostly of technical effects, has numerous supporting actors and where the lead actor appears only infrequently. Looking at the German version of the Pirates of the Caribbean, the Berlin court found that it mostly consisted of technical effects and had numerous extras and supporting actors with the actual contribution of the main actor -- and thus his German voice -- being comparatively small. Overall, the court held that Mr. Orff’s contribution to the films was not insubstantial but certainly covered by the fee already paid by the film production company.

Mr Orff (who is also the German voice of Ralph Fiennes, Sean Penn and Michael Sheen) has already announced that he will appeal against this decision, this in particular since he was already the second dubbing actor hired to dub Mr Depp after the initial dubbing actor’s efforts had been regarded as insufficient. Mr Orff feels that he has given the character his own personality.

This Kat can't help but adding 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. Meanwhile, Merpel read with interest that Mr Depp again has been given a new German voice for the 4th instalment of “Fluch der Karibik” which by the way translates into “Curse of the Caribbean”.

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).

From “Dr Googleberg” to the “Google Book Settlement” - Some news from Germany

Some of the IPKat’s readers may have followed the recent intriguing political scandal surrounding former German defence minister and Germany's political superstar Karl Theodor zu Guttenberg (depicted below on the cover of a new biography about his life), who last Tuesday resigned from office following allegations that he had plagiarized large parts of his “summa cum laude” PhD thesis in Law.

Naughtily dubbed “Dr Googleberg” or “Baron cut and paste” by some parts of the German media, zu Guttenberg decided not to use his Phd title after the initial accusations of plagiarism broke, then wrote to his university (Bayreuth) and asked to “return” his PhD, with the university subsequently deciding to take his doctorate away for good. Further investigations at Bayreuth University are still pending.

The whole story has some interesting legal implications as plagiarising a thesis could qualify as “carrying an academic title without authorization” (section 132 German Criminal Code -unlikely to apply since the PhD was bestowed legally initially) as well as ”criminal disloyalty” (section 266 German Criminal Code “Untreue”) since zu Guttenberg allegedly ordered essays from the scientific services of the Bundestag and used them in his thesis without properly referencing this third party work and due to the fact that he should have only used the services for his work as a member of parliament, not for his personal use. Perhaps most importantly, plagiarizing other’s works without referencing them properly could be copyright infringement under section 109 German Copy Right Act (using someone else’s works non-commercially without authorization).

On the right - the thesis in question

For the copyright infringement provisions to apply the law requires that one of the authors of infringed texts filed a complaint with the relevant authorities (provided that the texts that been copied in the thesis were itself “creations” that fell within the ambit of the copyright act), unless there was a heightened damage to the “legal good copyright” so that there could potentially be a public interest in prosecuting this matter. (See here for a discussion of the criminal law implications (in German)).

It appears that none of the allegedly copied authors has so far filed an official complaint with the prosecution authorities and it is now up to the prosecution authorities in Hof, Bavaria to investigate further after zu Guttenberg resigned from all his official posts and as such is no longer covered by the immunity laws. The university of Bayreuth is also conducting further (internal) investigations as does an interesting internet project called "GuttenPlag Wiki", which appears to have established that more than half of the thesis has been copied.

This Kat was in Germany when the story broke initially and was intrigued by the very high approval ratings zu Guttenberg boasted before and after his resignation. It does hence not come as too much of a surprise that - in typical German fashion - the first third party trade mark application for the trade mark “Guttenberg” in classes 9, 14 and 25 [update: the exact goods covered are not yet published on the official register] has been filed at the German Patent and Trade Mark Office.

Merpel now wonders whether Karl Theodor zu Guttenberg may find a new career as the new Paul (see above right and IPKat posts here and here) Knut, Heidi)?

From Dr Googleberg to the ongoing “Google Book Settlement” class action which also affects German authors and right holders. On its website, the German Collection Society “VG Wort” now informs us that it has again written to Judge Denny Chin of the New York District Court in relation to the “Google Book Settlement” case (The Author’s Guild et al v Google, Inc., case no 1: 05-cv-08136 (DC)).

In its letter to the court of 14 February 2011 (which can be retrieved via VG Wort’s website by clicking here (in English)) the German Collection Society requests an extension of the court deadlines for claiming a cash payment by 31 March 2011 and for claiming the complete removal of works by 5 April 2011. The extension of time should be granted in an interim ruling. VG Wort argues that since it was at present uncertain whether a settlement would be approved by the court, “(VG Wort) cannot be expected to incur the heavy administrative costs which would be involved” (...) “in determining the current status of German books under the existing terms of the settlement.” Furthermore, VG Wort also stresses that it was at present still unclear which German works would be covered by the potential settlement. VG Wort had already submitted an amicus-curia brief to the court ahead of the fairness hearing of 18 February 2010 (see Amerikat's report here) in which it had criticised that it was difficult and almost impossible to determine which authors and publishers were affected by the settlement.

Certainly not the last chapter in this matter.

Germany's rise to industrial power: due to lack of copyright?

The economic historian Eckhard Höffner proposes a controversial theory: Germany's rise (and Great Britain's relative decline) in industrial and technological innovation in the early 19th century was due to a lack of copyright in Germany prior to about 1840, and strong copyright protection in Great Britain since 1710. Copyright made publishers rich ("driving around the city in gilt carriages"), but meant that books were not affordable for the masses, while the cheap plagiarized copies in Germany led to the distribution of knowledge among all classes of society. From the Spiegel article on the book:

Höffner has researched that early heyday of printed material in Germany and reached a surprising conclusion -- unlike neighboring England and France, Germany experienced an unparalleled explosion of knowledge in the 19th century.

German authors during this period wrote ceaselessly. Around 14,000 new publications appeared in a single year in 1843. Measured against population numbers at the time, this reaches nearly today's level. And although novels were published as well, the majority of the works were academic papers.

The situation in England was very different. "For the period of the Enlightenment and bourgeois emancipation, we see deplorable progress in Great Britain," Höffner states.

Indeed, only 1,000 new works appeared annually in England at that time -- 10 times fewer than in Germany -- and this was not without consequences. Höffner believes it was the chronically weak book market that caused England, the colonial power, to fritter away its head start within the span of a century, while the underdeveloped agrarian state of Germany caught up rapidly, becoming an equally developed industrial nation by 1900.

Even more startling is the factor Höffner believes caused this development -- in his view, it was none other than copyright law, which was established early in Great Britain, in 1710, that crippled the world of knowledge in the United Kingdom.

The thesis is certainly going to stir up some debate. From the Spiegel article, there appear to be at least some inconsistencies:

The German proliferation of knowledge created a curious situation that hardly anyone is likely to have noticed at the time. Sigismund Hermbstädt, for example, a chemistry and pharmacy professor in Berlin, who has long since disappeared into the oblivion of history, earned more royalties for his "Principles of Leather Tanning" published in 1806 than British author Mary Shelley did for her horror novel "Frankenstein," which is still famous today.

This Kat wonders how Hermbstädt could earn substantial royalties absent copyright protection, but maybe he is missing the point. It appears clear that Germany had a very different publishing industry than Great Britain during that time, with a lot more technical/engineering type of books put out; but was lack of copyright really the reason for this?

A map, a copyright dispute and the Bundesverfassungsgericht

Not that many IP related cases make it all the way to the German Federal Constitutional Court “Bundesverfassungsgericht” (not to be confused with the Bundesgerichtshof), so this Kat was intrigued to read about a constitutional complaint filed against a court decision that related to a copyright dispute.

The German Bundesverfassungsgericht (case reference: 1 BvR 1991/09 of 26 April 2010) recently decided in favour of an online map service provider that had filed a constitutional complaint against a court decision of the Amtsgericht Hamburg of 2 June 2009 (case reference: 36A C 60/09) concerning a copyright dispute between the online map service and a website owner that had uploaded one of the online map service’s copyrighted maps to its own website. The Hamburg court had not granted leave to appeal its decision in this dispute and the aggrieved online map service filed a complaint to Germany’s highest court citing a violation of its constitutional right to right to be heard (“rechtliches Gehör”) .

In the original case, which was decided by the District Court of Hamburg, the online map service had claimed damages from the website owner based on a copyright infringement claim. The online map service was of the view that uploading a cut-out part of one of its copyright protected maps onto the website owner’s website constituted copyright infringement. It appears that this map image was held on a homepage server and could also be found via a search engine. The map image was also be directly accessible by third parties when entering the website owner’s URL into an internet browser. However, it had been established that the map image on the website owner's website had de facto only been accessed by a small number of people.

The website owner’s daughter had retrieved the map image directly from the online map service’s intranet, which could only be accessed by entering a password. The image ended up on the freely accessible home-page server via a link.

The District Court of Hamburg decided that the actions of uploading and displaying the image on the website did not amount to 'making the copyrighted works publicly accessible' in the sense of Article 19a of the Germany Copyright Act (UrhG). The court argued that the map was not accessible for the 'general public via the usual ways of access'. This conclusion may appear slightly unusual at first but this is what the Hamburg court had decided.

But all was not lost. The Bundesverfassungsgericht, which can of course only look at this matter from a constitutional law point of view, decided that the Hamburg Court had infringed the online map service’s right to due process (Rechtsschutzgarantie) under Article 2(1) in combination with Article 20(3) German Basic Law (Grundgesetz), which is Germany’s constitution. The Bundesverfassungsgericht further held that the trial court should have granted leave to appeal under Article 511 (4) Sentence 1, No. 1, Alternative 3 German Code of Civil Procedure (ZPO) to allow for a ‘uniformity of judicature’.

Why "uniformity of judicature'? In its decision the Hamburg court had followed the reasoning and arguments of a precedent from the Regional Court of Berlin (case reference 15 S 1/07) which was a minority opinion within the precedents of the German courts. For those of you that are common law qualified, please note that the courts in Germany are a lot more independent in how they decide and which earlier court decisions they wish to follow - albeit not completely free as this case illustrates. The Berlin court, which the Hamburg court decided to follow, had previously decided that 'accidentally noticing' a copyrighted image or an 'intentional search or investigation by the copyright owner via a search engine or by using a searching software did not qualify as making “public” under Article 19a.

With the constitutional complaint having been successful, the online map service can now file its appeal.

Since the Regional Court of Berlin has since also changed its views on what constitutes “public” in the sense of Article 19a (and now follows the more obvious route of the Higher Regional Court of Hamburg (case reference 15 O 341/09), which assumes copyright infringement in such cases), the appeal might even be successful.

Without wishing to be overcritical, this civil law qualified Kat can't help but thinking that the Common Law approach of following precedents certainly has some advantages.... and one might also speculate as to what the trial judge at the Hamburg District court was thinking when he/she decided not to follow its own Higher Regional Court in Hamburg and at the same time also denied the right to appeal.

The Bundesverfassungsgericht's decision can be retrieved by clicking here.

Update: Beyoncé's pirated bikini

As the IPKat has reported earlier, Triumph (the underwear manufacturer) obtained an interim injunction against Sony Music in Germany, enjoining Sony from further distributing Beyoncé's music video for the "Video Phone" song (see below; noooo, this post is not just an excuse for re-running the sexy footage).

Bardehle Pagenberg has posted the full text of the decision of the Munich court upholding the ex parte injunction, which answers some of the questions commentators raised with regards to the last post. Namely, commentators wondered whether Triumph had relied on copyright (as reported in the news media) or on an (unregistered) Community design.

I turns out the media were correct for once; Triumph indeed relied solely on a copyright claim.

The court notes that fashion designs are in principle protected by copyright law (as works of applied art), but in most specific cases, courts denied protection for lack of individual character (p. 8 of the decision). In the case at hand, however, the design of the bikini by Iskren Lozanov (pictured above right) was so unusual and original that there was no doubt about its quality as a protectable work in the sense of art. 2(2) German Copyright Act. The bikini worn by Beyoncé in the music video was a derivative work as the characteristics of Lozanow's design remain clearly recognizable.

As Henning Hartwig notes on Class99, this case will almost certainly go all the way up.

The German "Piratenpartei" and the German General election

A little while ago the IPKat reported on the German "Die Piratenpartei" (see the IPKat and Alex Horn's post here), the sister party of the Swedish Piratpartiet. While this Kat is politically neutral (well, at least on this blog), she still felt that it would be interesting to see how the German pirates fared at Germany's General election.

While Angela Merkel's CDU party won Sunday's General election and will now (most likely) form a new government with the liberal FDP party, the IPKat has noted that "Die Piratenpartei" appears to have secured a respectable 2% of all votes. Even though party chairman Jens Seipenbusch viewed these 2% as "magic threshold" (according to a report by German tabloid Bild), the German pirates will not enter the German parliament (Bundestag) since German election laws require that a party needs to have 5% of all votes to be represented in parliament. However, German tabloid "Bild" reports that 13% of Germany's first time voters voted for "Die Piratenpartei" - which is a respectable result, this Kat thinks.

The German pirates, inter alia, focus on the protection of civil liberties on the Internet, believe that there is no need for software patents, are against patents for "genes" or living creatures (Lebenswesen -would that include human beings?), believe that current copyright and intellectual property legislation is based on a "dated view" of intellectual property and support the legalisation of "private copying". Their website can be found here.

File sharing site RapidShare vs GEMA

The IPKat last week reported on a decision of the Regional Court of Hamburg in which the court fined the file sharing site RapidShare AG 24 million Euro for copyright infringement in respect of 5,000 tracks which had been shared through the site.


The Hamburg court had taken the view that it was the legal "duty" of the hosting service (not the copyright owners) to ensure that no copyright infringement was taking place via the site. In its decision, the court apparently referred to a statement by GEMA, the German performance rights association, which had claimed that the necessary 'scanning' software (which can detect copyright infringing material) was already available.

RapidShare has now issued a press release in which it announces that it will appeal the Hamburg court's decision and if necessary (and/or possible) take this matter to the German Federal Supreme Court and the ECJ. RapidShare disagrees with the court's and GEMA's view and seriously questions how a file sharing site can practically fulfil its legal "duty" to monitor its site for potentially infringing content, particularly when it comes to monitoring hidden data files, checking links and content on an internet forum. Furthermore, RapidShare claims that GEMA did not allow RapidShare to test the scanning software.


The cat on the right attempts to scan the IPKat for infringing content. Image taken from www.catster.com

An interesting case, with potentially far reaching consequences.

Playmobil figurines, a vicar and a copyright dispute

From Germany, via the IPKat's friend Edward Tomlinson comes the news of a bizarre copyright dispute over the use of Playmobil toy figurines.

According to a report by the Sueddeutsche Zeitung a young Protestant vicar, Pfarrer Markus Bomhard, has been "deforming" Playmobil figurines to depict biblical scenes. He designed new outfits for the figurines and painted these in his efforts to make everything look as realistic as possible.

Furthermore, the God-fearing vicar has reportedly been using candles to heat the figurines and bend them into the right shape. Apparently he has also - and there is no other way of putting this - "crucified" Playmobil figurines. Do not worry, his motives are of a pure and entirely religious nature and it is his plans to re-enact the whole bible by using the (deformed) figurines. On his websites www.playmo-bibel.de and www.klicky-bibel.de, which show photographs of his efforts, he states that his aim was "the proclamation of the Christian faith through the use of a great toy". The Sueddeutsche Zeitung reports that even Pope Benedict XVI appears to be a supporter of the vicar's non-profit project.

Nevertheless, the manufacturers, Geobra Brandstätter, have taken offence and called in their attorneys. A spokesperson for Geobra Brandstätter's is cited as saying that the manufacturer considers the changes to the figurines as an infringement of their copyright. While they were quite tolerant when it comes to creative consumers as long as this was conducted in private. However, the publicity surrounding the vicar's project "was of completely different dimensions". Furthermore, the vicar had clearly crossed a line when adding breasts and genitals on to his Playmobil version of Adam and Eve.

Even though the vicar has since removed the offending breasts and genitals, which he had added for the sake of authenticity, Geobra Brandstätter is still not happy: they have sent the vicar a cease and desist letter asking him to stop his infringing use by 6 April 2009. Reason for this is apparently that the manufactuerer wants to pre-empt a book offer from an interested publishing house which is rumoured to have planned a Playmobil Bible.

The IPKat has checked the vicar's website and he has already announced that he will stop using the term "playmo-bibel", which has been renamed to "klicky-bibel". The IPKat understands that Geobra Brandstätter have to enforce their copyrights and that clearly not all use is acceptable; for example when German TV entertainer Harald Schmidt used Playmobil figurines on his late night show to reenact the life of Adolf Hitler. Merpel on the hand, while not associated with any religious beliefs, has rather enjoyed the vicar's website and wonders whether the manufacturer could have perhaps used the vicar's project as an advertising tool and allowed other religious groups to create similar projects, if they so wish.

Zeitungszeugen case: the next chapter

A slight anticlimax in the Zeitungszeugen case concerning the ongoing battle between the Bavarian State government (Bavarian Ministry of Finance) and a British publisher, Peter McGee, concerning the republication of historical Nazi newspapers in a reprint series (see the IPKat's earlier posts here and here).

German magazines Der Spiegel and Focus report that the Regional Court Munich I (Landgericht München I, depicted on the left) yesterday partly rejected the Bavarian state government's attempt to use copyright laws to prevent educational reprints of Nazi newspapers Voelkischer Beobachter and Der Angriff. The court decided that the publisher of the history series Zeitungszeugen (in English: newspaper witnesses) is allowed to reprint early editions of the newspapers which were first published before 1939, i.e. published from 1933 to 1938. The judges ruled that the copyright in these publications has already expired, given that more than 70 years have passed since the newspapers in question were first published. The court took the view that notorious Nazi propaganda minister Goebbels and Adolf Hitler, who were both listed as editors of the newspapers, could not be considered as editors in the legal sense due to a lack of their respective 'creative input'.

Logically, the Munich court decided differently for reprints of newspapers which were published during and after 1939. These newspapers were not yet out of copyright and the republication of entire newspapers could not be considered as a legitimate citation. As such, Zeitungszeugen magazine is not allowed to reprint articles or newspapers published from 1939 to 1945 because Bavaria still holds the copyrights for that period.

The ruling has no impact on Kat newspapers (picture taken from the Blue Skunk Blog)

The Bavarian State government intends to appeal the decision (see press release here), whereas the British publisher behind the Zeitungszeugen project is cited as being very happy with the Munich court's decision. Tobias Pichlmaier, a spokesperson for the court is cited by Focus magazine as saying the Bavarian state had to think of something other than copyright laws if it intended to prevent such republications.

The court's press release can be found here (in German). Case reference is 21 O 1425/09, Landgericht München I. The decision is not final.


Certainly not the last chapter in this dispute. The IPKat also wonders what the Bavarian State government's plans are for the time after 2015 when the copyright for Adolf Hitler's Mein Kampf will expire 70 years after the death of its author. Mein Kampf currently cannot be bought in Germany. Finally, this Kat seems to recall that the prosecution in Munich had intended to start criminal proceedings against the publisher. Do any of our readers know whether this ever happened...?

Next chapter in the copyright dispute over the republication of Nazi newspapers

The Sueddeutsche Zeitung reports on the next chapter in the ongoing battle between the Bavarian State government (Bavarian Ministry of Finance) and a British publisher, Peter McGee, concerning the republication of historical Nazi newspapers in a reprint series (see the IPKat's earlier post here). The reprint series Zeitungszeugen (in English: newspaper witnesses) came with an outer layer of pages that included commentaries explaining the historical context of the original publication and the Nazis' propaganda tricks. German media has previously reported that the state of Bavaria holds the copyright the relevant Nazi publications, such as the Voelkischer Beobachter, after it took over the rights of the main Nazi party publishing house Eher-Verlag after the end of World War II as part of the Allies' de-Nazification programme. It was also reported that Bavarian state officials had confiscated more than 3,200 reprints of an edition of Voelkischer Beobachter. The publisher of this educational series was not amused.

The Sueddeutsche Zeitung now reports that it appears that the the 21st civil chamber of the Regional Court Munich I (21. Zivilkammer, Landgericht Muenchen I) will decide the copyright dispute in favour of the publisher, Peter McGee. While the final decision is expected for 25 March 2009, the presiding judge, Thomas Kaess, seems to have already hinted at the possible outcome, the Sueddeutsche Zeitung reports. Judge Kaess is cited as saying that if the State of Bavaria was interested in stopping such reprints, then it should pass an appropriate law instead of "... poking in copyright law". Moreover, it was doubtful whether the Bavarian State even owned the relevant copyrights, plus these rights may have already ceased to exist. Judge Kaess is further cited as saying that copyright law was, in any case, a difficult basis for the Bavarian State's legal claims. It was further doubtful whether Adolf Hitler had indeed been the editor of the Voelkischer Beobachter, particularly whether he had had the time to contribute to the publication and to take decision as to which articles were to be included in the publication. The mere fact that he had been mentioned as the editor, was not enough to establish a copyright proprietorship in the publication, Judge Kaess is cited.

The Sueddeutsche Zeitung also reports that the Bavarian State had apparently, inter alia, referred to a law of October 1933 - and as such a law passed by the Nazi regime - to support its claim of a copyright transfer. While there are clearly some (moral) questions whether such a law can or should be evoked today, it appears that it was not even applicable because the relevant editions of Voelkischer Beobachter were first published in March 1933 before the law came into force.

An interesting case, which not only raises legal questions. Many of the legal issues that were initially discussed might not even be of importance. However, it appears that the Munich court takes a rather detached and common sense approach, which makes this Kat look forward to the Munich court's final decision. This Kat also seems to recall that the prosecution in Munich had intended to start criminal proceedings against the publisher and wonders how the outcome of the copyright dispute will affect these proceedings...

Judge blows full-time whistle in author/cartoonist joint authorship spat

The IPKat is always pleased to hear from his friend and occasional contributor Thorsten Lauterbach (Aberdeen Business School, The Robert Gordon University), who has sent him the following piece of information:

"The author of the popular German youth book series “Wilde Kerle” (“Wild Boys” or “Wild Things” -- if that’s appropriate as a translation of a youth book title) ended up in a Munich court following a claim to joint authorship in the literary characters which feature in the book.

The author, who used to coach a youth football team, at some point asked his friend, a cartoonist, to create a logo for the team kit. This led to the creation of one of the most successful book series for young children, comprising thirteen books and no fewer than three movies about the adventures of a group of football-playing youths in a small town.  The two friends later fell out, probably over the question who should get how much of the royalties, and whether in future anything could be published – both in terms in books and movies – without each other's agreement.

The cartoonist argued before the Landgericht München I (Munich Regional Court) that his contribution – cartoons depicting the characters of the stories – should give him joint authorship (and therefore joint ownership) of the literary characters that appeared in the stories. If he won this argument, not only would he be entitled to a greater share of the royalties and control over future editions of the already published books and movies, but he could also lay claim to any future output. Understandably, the author of the stories – and creator of the literary characters – vehemently disputed this contention.

In only one issue did the court side with the disgruntled cartoonist, holding that no new editions of the already-existing thirteen books may be published without the cartoonist’s drawings. However, that is as good as it got for the claimant, since the court also held that, while he clearly authored the cartoons of the stories’ characters, these did not entitle him to be considered as joint author in the literary work and the characters. This is an interesting point, as the cartoons no doubt led to the characters becoming alive in a particular way in the minds of the readership. However, the court argued that the cartoons constituted individual ‘illustrations’ at certain points within the thirteen novels, rather than something akin a ‘comic strip’ where illustrations made up both stories and characters. In the former, the lack of sufficient interaction between the illustrations and the plot of the story and its characters leads to failure of the joint authorship claim: particular characteristic features of the protagonists used in the written text of the stories cannot be found so explicitly in the accompanying illustrations. Illustrations which are individual and isolated from the stories in this way can be interpreted in many different ways, in the opinion of the court, and are meant and are limited to merely suggest to the reader/observer a way to picture the boys in his/her imagination.

As a consequence, the combination of the literary work with the illustrations could be regarded, at best, as a collective work. The author of the stories is accordingly free to write further novels without input by his now former friend; nor was the cartoonist entitled to damages in respect of “Wilde Kerle” films IV and V which were created without his involvement as a director, nor were his cartoons used in the making of those movies. At this stage, it is not clear whether this is bound to go to extra time (or should that be a replay?), since the claimant has not indicated his plans to appeal the judgment (Az: 21 O 13662/07, LG München I, 23 January 2009)".

Republication of "Nazi newspapers" - verboten?

The IPKat has been monitoring for a while a developing story in Germany about the ongoing battle between the Bavarian State government (Bavarian Ministry of Finance) and a British publisher concerning the republication of a series of historical newspapers, including historical Nazi newspapers.

In January 2009 the German media reported about the confiscation of 280 copies of a reprinted Nazi newspaper by Bavarian officials. One the face of it, the case seemed clear: publishing Nazi propaganda is illegal in German and a criminal offence. However, things were not that straight forward, since it transpired that the objectionable publications were part of reprint series which had previously been praised by historians. The publisher Albertas, a British company, appears to have offered facsimile reprint copies of historical newspapers in several European countries. It was also reported that the reprint series Zeitungszeugen (in English: newspaper witnesses) came with an outer layer of pages that included commentaries explaining the historical context of the original publication and the Nazis' propaganda tricks.

According to German media reports (and the Bavarian Ministry of Finance's website) the state of Bavaria holds the copyright for many of the Nazi publications, such as the Voelkischer Beobachter, after it took over the rights of the main Nazi party publishing house Eher-Verlag after the end of World War II as part of the Allies' de-Nazification programme. Bavaria has so far not allowed unannotated reprints of these publications due to the Nazi propaganda content. What is allowed are reprints of parts of articles put in the proper context and combined with historical scholarly comments. In the current case, the Bavarian state also objected to the reprint because the educational comments were only included in the covering pages of the reprint. Once the outer cover pages are removed, which reportedly is easily done, the newspaper looks exactly like it did during Nazi times--something which the Bavarian state does not want see published. The Bavarian state has so far taken a similarly strict approach when it comes to the possible re-publication of Adolf Hitler's Mein Kampf (My Struggle) in Germany, which has not been republished in its entirety in Germany since the end of World War II. It should be noted that the Bavarian State did not question that Albertas was an an educational publisher.

German magazine Der Spiegel reports that, even though some historians have tried to publish a scholarly annotated version to demystify the content once and for all, the Bavarian state has far reportedly refused to give consent. As copyright holder, Bavaria has refused to allow the book to be republished in its entirety, on the grounds that it would promote right-wing extremism. In the case of Mein Kampf, it will have to be seen what Bavaria will do after 2015 when the copyright for Mein Kampf will expire 70 years after the death of its author. The IPKat has done some research himself and has seen that interestingly Mein Kampf is available freely in the UK via Amazon.

By February it was reported that Bavarian state officials had confiscated more than 3,200 reprints of an edition of Voelkischer Beobachter and that prosecutors had launched criminal proceedings against the publisher on the grounds of copyright infringement and the publication of Nazi emblems, which is a criminal offence under the German Criminal Code. The German newspaper Die Zeit reports that the Bavarian government had enough after the second edition of Zeitungszeugen (which included copies of several historical newspapers, such as the social democratic Vorwärts, the liberal paper Vossische Zeitung, as well as the NSDAP Nazi paper Völkischer Beobachter) also enclosed a reprint of a historical poster showing the Reichstag on fire with a call for voters to vote for Adolf Hitler in March 1933. The poster also called to destroy the social democrats and communism and it showed a depiction of the swastika. The edition of Voelkischer Beobachter further included a commentary written by notorious Nazi propaganda minister Goebbels.

Wilfried Krames, a spokesman for the Bavarian justice ministry is cited by the BBC as saying: "The criminal proceedings are under way and the prosecutors are taking this case very seriously." He is further cited as having said that "... because of our country's history, there are regulations in Germany's criminal code which govern the use of Nazi symbols." "Even a reprint of a Nazi newspaper is unconstitutional because the publisher is still reproducing Nazi emblems and this also represents a breach of copyright law".

The British publisher Peter McGee (Albertas) behind the Zeitungszeugen sees matters differently and wants to make the historic content available to the public. He reportedly sought advice from German historians and is quoted as saying that Zeitungszeugen should be read by people who "...would never read a contemporary history textbook, but still value quality analysis of the information". Mr McGee sees an infringement of freedom of press and doubts that the Bavarian state owns the copyright in the Voelkischer Beobachter. His lawyer Ulrich Michel is quoted (again by the BBC) "... even if the state of Bavaria were the rightful owner, under German copyright law, you are allowed to use and publish these works for scientific purposes." "The purpose of the project is scientific. Zeitungszeugen was compiled with the help of 10 renowned historians and other scientists, including the director of the Holocaust Research Centre at the Royal Holloway College in London". Mr Michel reportedly also sought the advice of two (unnamed) university professors in criminal law, which he says have confirmed the republication of the Nazi newspapers would not constitute a criminal offence "... because the law only applies to propaganda material which was published after the German constitution was drawn up in 1949, and not to material which was published before". And even if, the "... law does not apply when the publishing is done for educational purposes." Albertas also states that similar publications in Austria were supported by the Austrian Ministry of Education and without the Bavarian state complaining. Albertas appears to be determined to fight this matter all the way, if necessary to the German Federal Constitutional Court and to the ECHR.

The Sueddeutsche Zeitung reports that the third edition of Zeitungszeugen has now been published in an edited version, which only included the editor's comments but does not include a copy of the actual newspaper. However, the edited version appears to include a coupon which allows the interested reader to order a copy of the actual paper(s). The Sueddeutsche Zeitung also expects that this matter will soon go to court. However, according to Zeitungszeugen's website, edition four of the Zeitungszeugen is again published in its entirety.

This German Kat has mixed feelings about this matter, which has clearly raised several questions. The question of copyright infringement has to be separated from the criminal law question. There is certainly an argument that this kind of republication could be covered as a "quotation" by section 51 No. 1 of the German Copyright Act (so-called "Grosszitat"), which also covers complete republications of newspapers. Section 51 No. 1 of the German Copyright Act ("Quotations") stipulates that "...the reproduction, distribution and communication to the public shall be permitted, to the extent justified by the purpose, where ... individual works are included after their publication in an independent scientific work to illustrate its contents".

Furthermore, does the republication fall under the relevant provisions in the German Criminal Code (StGB) or is there a "get out of jail free card" that it is a historical research and educational? The relevant Criminal Code provisions are in section 86 and 86a StGB. Section 86 StGB (Dissemination of Means of Propaganda of Unconstitutional Organizations) rules that:

(1) Whoever domestically disseminates or produces, stocks, imports or exports or makes publicly accessible through data storage media for dissemination domestically or abroad, means of propaganda: (...)
4. means of propaganda, the contents of which are intended to further the aims of a former National Socialist organization, ...shall be punished with imprisonment for not more than three years or a fine. (...)

However.... (3) Subsection (1) shall not be applicable if the means of propaganda or the act serves to further civil enlightenment, to avert unconstitutional aims, to promote art or science, research or teaching, reporting about current historical events or similar purposes.

Section 86a StGB governs the "Use of Symbols of Unconstitutional Organizations".

This Kat personally has a rather uneasy feeling about publishing historic Nazi content which can be spread further - potentially without any annotations or comments. Yes, Zeitungszeugen's early two editions did include these historical comments but only in their covering pages, which reportedly could be easily removed and the newspaper could then have been passed on. Would this "naked" copy still be an educational copy? Should an educational copy not have the educational content attached in way so it can't be easily removed from the reprinted part? Or would demanding this add additional hurdles that are potentially unconstitutional? This Kat is also aware that moral questions should not be confused with legal issues but sometimes it is not that easy - there is also the question of respect for the victims of the Nazi era. Would that mean rewriting the law?

There are also potential constitutional issues. Freedom of expression, which is protected as a basic human right in Article 5(1) Basic Law/German Constitution is most likely affected. Furthermore, Article 5(1) Basic Law also states that there "...shall be no censorship". Freedom of research, which is equally protected as a basic human right in Article 5(3) Basic Law, could be affected keeping in mind that Article 5(3) Basic Law also stipulates that "...the freedom of teaching shall not release any person from allegiance to the constitution."

The IPKat will continue monitoring this case and is looking forward to readers' comments.

The press release of the Bavarian Ministry of Finance of 16 January 2009 can be found here.
The press release of Zeitungszeugen of 16 January 2009 can be found here (both in German).

BGH confirms opera 'Motezuma' was published in 1733

In a case concerning a lost composition by Italian composer Antonio Vivaldi, the German Federal Supreme Court (Bundesgerichtshof) this week clarified the circumstances under which a work may be considered as 'not published' under section 71 German Copyright Act, with the consequence that the first publisher of the respective work owns the exploitation rights for the work.

The IPKat has read the Bundesgerichtshof's press release (case reference: I ZR 19/07 - Motezuma of 22 January 2009, the decision is not yet available in its entirety) with interest and has translated and summarised this unusual case below:

The claimant in the proceedings was the Sing-Akademie zu Berlin, who owns an archive of handwritten manuscripts of musical compositions. In 2002, the long lost music sheets of the Vivaldi opera 'Motezuma' were discovered in the Berlin archive. The court established that it was a known fact that the opera 'Motezuma' had had its premiere at the Teatro St Angelo in Venice in 1733, eight years before the famous composer died in 1741. However, while the opera's libretto was still available after the premiere, the music had been considered as lost. After the original handwritten composition was discovered in the Berlin archives, the claimant decided to publish and sell reprints of the original handwritten musical sheets.

The Sing-Akademie was of the view it had full copyright to the opera, contending that it was the first publisher of the first edition ('editio princeps') of this posthumous work and as such should be entitled to the exclusive exploitation rights to this 'posthumous work' under Article 71 German Copyright Act. By way of background information: Article 71 German Copyright Act provides that "...any person who causes a work which has not previously been published to be legally published for the first time or performs it in public for the first time after the expiry of the copyright shall have the exclusive right to exploit it."

In the current case, the Sing-Akademie demanded compensation from the organiser of the Düsseldorf based music festival 'Altstadtherbst' which had performed 'Motezuma' in September 2005 in Düsseldorf without the claimant's consent. The Regional Court Düsseldorf and (on appeal) the Higher Regional Court of Frankfurt both dismissed the Sing -Akademie's claim.

The Federal Supreme Court has now decided that the first publisher of the first edition of a 'posthumous work', who claims to own the exploitation rights to the work, has the burden of proof to show and demonstrate that the work in question had indeed 'not previously been published'. The Federal judges acknowledged that it was rather difficult to prove the non-existence of a fact, particularly because it had be proven that a century old musical work had not previously been published. Taking this into consideration, the court ruled the the claimant was allowed to initially just allege that the work had so far not been published. It was for the defendant to demonstrate evidence to the contrary, i.e. by showing circumstances which supported that the work had indeed been published. According to the court, the claimant could only fulfil its burden of proof if it was able to rebut the evidence brought forward by the defendant, i.e. if it could successfully deny the circumstances shown by the defendant. The IPKat admits that this is not a straightforward case but bear with the Kat... the solution is close.

Applying these principles to the current case, the Bundesgerichtshof decided that the claimant had not sufficiently rebutted that Vivaldi's opera 'Motezuma' had not been published previously. The court referred to Article 6(2) Sentence 1 German Copyright Act, which stipulates that "... a work shall be deemed published if, with the consent of the copyright owner, copies of the work have been produced in sufficient quantity and have been publicly offered for sale or put into circulation. " As such, a work is deemed published, when number of copies published is sufficient to allow the interest public to access the work. In the light of these provisions the court concluded that the opera 'Motezuma' had already been 'published' in 1733.

Expert witness statements by renowned musicologists had further revealed the following historical facts: musical works which had been commissioned by Venetian opera house, such as the opera in question, were usually only staged for one season at the respective opera house. In addition, one copy of the musical score was usually deposited at the respective opera house to allow interested parties, such as foreign kings, to take copies of the music. The Federal judges acknowledged that it could not be proven with complete certainty whether this had been the case with 'Motezuma'. However the court took the view that the claimant had not been able to submit any evidence of different events and, as such, there was a high probability that the work had been published in the sense of Article 6(2) Sentence 1 German Copyright Act, when the music sheets had been handed to the participants of the premiere in 1733 and when a copy of the score had been deposited at the opera house Teatro St Angelo in Venice in 1733. The judges decided that the Venetian opera audience and other interested parties had the chance to access the score and make copies of it in 1733. In the light of the above, the court dismissed the claim.

When hearing about this case, the IPKat's first (rather naive) thought was that this should be an easy case to decide. A work, which was composed and premiered in 1733, should by now surely be out of copyright, no? Alternatively, if there were any existing rights in the work, then they would (perhaps) belong to Vivaldi's estate or the opera house where the work was premiered...? The IPKat is certainly impressed how the court managed to reconcile common sense with the relevant provisions in the German Copyright Act. It all just seems rather complicated.

More information about Antonio Vivaldi can be found here.

More information about Sing-Akademie zu Berlin can be found here.

A night at the cat opera, here.

Information about various Montezumas, can be found here.

"Like an animal in a zoo": copyright dispute over Klaus Kinski quotations

German newspapers today report on an interesting court case dealing with potential copyright infringement through the use of direct quotes attributed to the (in)famous late actor Klaus Kinski in a theatre play based on episodes from the actor's life. The late German actor Kinski (pictured left) was well-known for his for his explosive and unpredictable temperament and often played manic characters.

According to the news reports, over 30% of the text of the objectionable 50 minute one-person play "Kinski – Wie ein Tier in einem Zoo“ (in English: Kinski - Like an animal in a zoo) consists of direct Kinski quotes. Some of the quotes appear to have been artistically changed by the play's author. Mr Kinski's ex-wife Minhoi Loanic and his son Nikolai objected to this excessive use and filed a claim for copyright infringement at the Regional Court of Cologne. The defendants in the case, actor Hanno Dinger (pictured in the photo to the right) and director Stefan Krause, argued that their use of Kinski quotes in the play complied with German Copyright Law and was in itself protected by "freedom of art", which Article 5(3) of the German Constitution protects as a basic human right. The defendants stated that they would, in principle, be willing to share potential profits with Kinski's family should the play ever make any money. It appears that the play, which has already been on stage for 2 years, has so far only attracted an average of nine to twelve visitors per performance and has, so far, caused a financial loss of 3000-5000 Euros. "Mere enthusiasm" kept them going, the claimants stated in an interview. The claimants' lawyer, Christine Danziger, was quoted as saying that the court action was not only about protecting copyright but also about potential negative financial consequences for the aspiring actor Nikolai Kinski, whose own stage show was apparently also based on his father's memorable quotes and wisdom. However, Ms Danziger denied earlier reports which had suggested that Nikolai Kinski had sought damages of over 30,000 Euros claiming loss of profits.

After hearing the case, the court on Wednesday suggested a settlement and proposed that the defendants could pay a certain percentage of the profits earned through the performance of the play to the claimants. This proposal was rejected by the claimants who refused to settle the case under on these conditions. The court's decision is now expected for February 2009.

Not surprisingly, the court has already announced that the use of the quotations in the play had to be assessed in the light of the constitutional guarantee of "freedom of art" under Article 5(3) of the German Constitution. In this respect the court reportedly referred to earlier precedents decided by the German Federal Constitutional Court (Bundesverfassungsgericht).

This new Kat ventures the guess that the case will be decided in favour of the defendants, unless Mr Kinski Jnr. was able to prove substantial financial losses:

The German Copyright Act (UrhG) clearly acknowledges the right to quote/cite ("Zitierfreiheit") in its section 51 No. 2 UrhG. Given the defendants' theatre performance clearly falls within the ambit of "freedom of art" Article 5(3), the provision(s) of the copyright act have to be interpreted in the light of the constitution. The German Federal Constitutional Court has previously decided that in cases where an artist quotes another artist, Section 51 No. 2 UrhG not only protects the property interests of the original author (and his legal successors) but also the artistic freedom of the "infringing" artist (see BVerfG-K, NJW 2001, 598 "Grenzen der Zitierfreiheit"). The original author's (and his legal successors) property rights in the quotations are equally protected as a basic human right under constitutional guarantee of 'personal property' in Article 14 of the German constitution. In such cases, the court has to carefully balance the conflicting rights. Only where there is a clear danger that the original author (or his legal successors) could suffer more than just "marginal financial losses", will the "exploitation interest" of the original author prevail over the artistic expression of the second artist. Within the ambit of Article 5(3) of the Constitution, section 51 No. 2 UrhG serves as legal means of "artistic examination" and has to be interpreted liberally.

Even though the outcome of this case appears rather predictable - based on the facts reported in the media - the case has certainly raised Nikolai Kinski's profile and given the young actor some free publicity. The amount of media coverage dedicated to this case might even make some people decide to see the objectionable play.

More on Klaus Kinski can be found here.

More on "Wie ein Tier im Zoo" can be found here.

The German Copyright Act can be found here (in German).

Background information on (un-)successful stage plays can be found here.

Computer printers not liable for copyright levy, rules BGH

In a press release of 7 December 2007, the German Federal Court of Justice (Bundesgerichtshof) has reported that its First Civil Senate, which is responsible for copyright law (among other things), gave a ruling on 6 December 2007 that the legal duty under § 54(a)(1)(1) of the German Copyright Act to pay remuneration to copyright holders for technology capable of copying does not apply to normal, everyday computer printers.

The decision (case number: I ZR 94/05) is not yet available in its entirety but, in its press release, the court acknowledges that computer printers can be used to produce unlawful copies of protected works. The court also emphasises that whoever uses a computer printer often has a legal right to do so, i.e. when printing content from the internet for personal use or when printing information from a CD-ROM where the act of printing is already covered by the licence agreement. Case law on the use of photocopiers - in respect of which a levy is imposed - cannot be applied in analogy. The claimant, VG Wort, which represents copyright holders and authors in copyright matters, has issued a press release in which it calls the decision a “sell-out of copyright law”.

The IPKat thanks Birgit Clark for digging this up and translating it for him. He wonders whether there may be a question of double-accounting at stake, if the same acts of private copying that would be covered by a printer levy would also be covered by the computer to which the printer is attached. But Merpel says, these machines are so clever these days: they can print, scan, photocopy and do goodness-knows-what-else. Perhaps the time is ripe for extending the levy to cover them too.