Missing name of the dubbing actor

The plaintiff is a radio play and dubbing actor as well as an actor. He has already dubbed over 1,000 cinema and television films, commercials and radio plays. The defendant is the distribution and sales company of a feature film in which the plaintiff performs the German language version of the main character.

Section III of the contract concluded between the parties for the synchronization service included the following provision:

The Studio, its clients and any partners are entitled, but not obliged, to name the contractual partner in the opening or closing credits and in announcements of any kind.

During a visit to the cinema, the voice actor discovered that his name was not mentioned in either the opening or closing credits of the film. He then demanded that the film producer cease and desist and asserted claims for damages.

Copyright protected naming right infringed

The Berlin Regional Court essentially ruled in favor of the plaintiff in its judgment of November 4, 2014 (case no. 15 O 153/14).

He is entitled to injunctive relief under § 97 para. 1 UrhG in conjunction with. §§ Sections 74 para. 1, 73, 78 para. 1 no. 3, 19 para. 4 UrhG to the effect that the German dubbed version of the film should not be shown in public without reference to his involvement in the opening or closing credits. The screening without mentioning the name of the dubbing actor would violate his rights protected under Section 74 para. 1 sentence 2 UrhG is unlawfully infringed.

According to this provision, the plaintiff can decide for himself whether and by which name he wishes to be named. In principle, however, in the case of works which – as here – are composed of copyright-protected contributions from different authors, each author must be named. This applies in any case as long as the naming of each of them does not require disproportionate effort.

No waiver of naming in general terms and conditions

In the opinion of the 15th Civil Chamber, the plaintiff also did not effectively waive his right to use the name. Rather, the waiver of his naming rights provided for in Section III. of the General Terms and Conditions of Production was in accordance with Section 307 para. 1 sentence 1, para. 2 No. 1 BGB. The provision deviates from the essential basic ideas of the statutory provision and unreasonably disadvantages the dubbing actor contrary to the requirements of good faith.

The judges justified this as follows:

The provisions on the right to be named as the author (Sections 13, 74 UrhG) are part of the moral rights of the author and ensure that the authorship of the creator of the work is recognized by the public. They are an expression of the author’s idealistic interest in being associated with the work, but also have considerable material significance because the author’s designation can have an advertising effect and result in follow-up orders.

This right to acknowledge authorship as such cannot be waived. It is true that the author can expressly or tacitly agree to his work being published in a specific case without his name being mentioned. However, he cannot definitively give up the right to acknowledge authorship with the consequence that a corresponding contractual obligation is invalid. This is certainly the case if a general waiver – as in the present case – is declared in general terms and conditions. This would deviate from the basic legislative decision, according to which every author must be able to decide on their right of designation in each specific individual case.

Compensation in the amount of the fee

In the opinion of the Berlin Regional Court, the plaintiff is also entitled to claim damages on the basis of Section 97 para. 2 sentence 4 UrhG. Since the defendant allowed the film to be shown publicly in the German dubbed version in breach of the obligation to mention the name, there was an unlawful act of infringement. This infringement was also culpable.

In accordance with Section 287 of the German Code of Civil Procedure (ZPO), compensation was deemed appropriate in the amount of 100% of the usage fee received by the plaintiff. The dubbing actor had only claimed a slightly higher amount in his claim, so that his request was essentially granted.

When determining the amount of damages, it had to be taken into account that the film had been shown and distributed publicly without naming the plaintiff, without exception and deliberately, according to the judges. In addition, it would be customary for a film to explicitly name all participants – even those with only minor contributions – in a detailed credits list. The omission to name the speaker of a leading role therefore also appeared to be an intensive infringement in this light. In addition, the omission of the name also has presumably not insignificant material consequences for the dubbing actor because he is threatened with losing follow-up orders.