The German film classic „Das Boot“, which was produced in the early 1980s, was nominated for an Oscar in six categories and earned millions of euros over the years. Despite this, the German chief cameraman Jost Vacano „only“ received a lump sum of around 100,000 euros for his work.

Cameraman argues with „fairness paragraphs“ for additional remuneration

Section 32 of the Copyright Act has been in place for such cases since the early 2000s. On the basis of the „fairness paragraph“, the author of a work can subsequently demand a change to the contract. The prerequisite is that the remuneration agreed for the granting of his rights is „not appropriate“. In addition, the provision provides for further involvement of the author if he has granted a right of use to another person on terms that are conspicuously disproportionate to the income and benefits from the use of the work.

On this basis, 87-year-old Vacano has been fighting for more money for more than a decade now. His lawsuit is directed against the production company Bavaria Film, Westdeutscher Rundfunk, which broadcast the film in its program and granted paid sub-licenses, as well as against the video distributor, which distributed the film on the basis of license agreements on image carriers in Germany and Austria.

Federal Supreme Court refers parallel proceedings back to the Court of Appeal

In addition, the German cameraman sued the other eight ARD broadcasters in parallel proceedings. These had also all broadcast the film in their programs. The Stuttgart Higher Regional Court initially ruled in Vacano’s favor. However, the case was overturned in the appeal proceedings before the Federal Court of Justice and referred back to the court. The reason for this is that, in the opinion of the Federal Court of Justice, an incorrect calculation method was used for the additional remuneration.

Munich Higher Regional Court’s calculation basis for additional remuneration also incorrect

The Munich Higher Regional Court also ruled in Vacano’s favor. It awarded the plaintiff a total of around 438,000 euros plus 150,000 euros in interest. However, after all parties to the proceedings appealed, the Federal Court of Justice has now also overturned this decision. The case was referred back to the Higher Regional Court of Munich for a new hearing and decision (judgment of April 1, 2021 Ref.: I ZR 9/18).

The reason for this is once again the approach taken by the Court of Appeal to calculate the additional remuneration in accordance with Section 32a UrhG. In their decision, the judges in Karlsruhe criticized above all that the Munich court had not taken into account the fact that when examining the „conspicuous disproportion“ within the meaning of Section 32a UrhG, it is only the relationship between the author and the authorized user that is taken into account for the further participation.

Following the previous decision in the parallel proceedings, the Federal Court of Justice has used this decision to specify the guidelines for the application of Section 32a UrhG. It remains to be seen whether this will further complicate or even simplify the already complex calculation of additional remuneration.