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.