What happens if a book or movie unexpectedly becomes very successful and the originally agreed remuneration suddenly seems disproportionate? Why was RTL legally ordered to provide information about advertising revenue?
What is the “fairness clause”?
In copyright law, the so-called fairness clause (Section 32a UrhG) applies when a work is unexpectedly successful. It is intended to protect authors from being permanently exploited “below value” and to give them the opportunity to share fairly in the commercial success of their works.
Even if only a low remuneration was agreed in the original contract, an additional claim can be made later if the payment subsequently proves to be inappropriate or unfair. This gives rise to a claim for additional remuneration.
In order to be able to assess whether a claim under Section 32a UrhG exists, authors must first assert a right to information. This serves the purpose of transparency and makes it possible to gain insight into the use and economic returns of their work. This creates a basis for checking whether the fairness clause is applicable.
What does RTL have to do with it?
Filmmaker Jana Bernhart set the legal dispute with RTL in motion when she asserted her right to information. The Higher Regional Court of Cologne ruled that she was entitled to this claim in principle and that it could not be defended against on the grounds of disproportionately high costs for RTL (judgment of 15.11.2024, ref. 6 U 60/24). The court also clarified that there is a sufficient connection between the advertising revenue and the films produced by Ms. Bernhart. After all, the income is based on the viewing figures for these films.
RTL wanted to appeal against this ruling. However, the OLG refused to allow the appeal and the BGH also rejected the subsequent appeal against denial of leave to appeal. The judgment is therefore final.
What do those involved say?
An RTL spokeswoman told LTO that the broadcaster would fulfill its obligation to provide information. Nevertheless, Jana Bernhart has been waiting in vain for this to happen. In the meantime, she has called in a lawyer, who has already filed an application for compulsory detention against the RTL management.
The case shows that it is worthwhile for authors to know their own rights and to actively demand the right to information. This is the only way to uncover inappropriate remuneration and, if necessary, compensate for it by claiming additional remuneration.
Frequently asked questions
What is the “fair use provision” in copyright law?
This refers to the right to reasonable supplementary compensation under § 32a of the German Copyright Act (UrhG): If the agreed-upon compensation is conspicuously disproportionate to the work’s success, the author may demand an additional share of the proceeds.
What role does the right to information play?
Under Section 32d of the German Copyright Act (UrhG), authors are entitled to information regarding the extent of the use of their works and the revenues generated—the basis for calculating fair retroactive compensation.
When is it worth pursuing a claim?
When a work is significantly more successful than could have been foreseen at the time the contract was signed, such as in the case of major TV or streaming hits.
Authors are entitled to a fair share of the profits generated by their works—including the right to information and retroactive compensation. We enforce these rights on your behalf—learn more on our copyright page.
