€1,300 for Tatort opening sequence is sufficient

The creator of the opening sequence for the television series 'Tatort' had demanded reasonable further remuneration on account of the ongoing success of the series. In 1969, she had received only a one-time lump sum payment for her work.

Prior to the copyright reform in 2002, in order for an author to claim further remuneration (now § 32 a UrhG), it was required, among other things, that the actual success of the work at the time of licensing could not have been foreseen. The Regional Court (LG) Munich I, and following the appeal lodged thereafter, the Higher Regional Court (OLG) Munich had to decide, in the context of a multi-stage action, on a disclosure claim by the creator of the well-known Tatort opening sequence, which has been used in unchanged form for the series for 40 years and is broadcast on television up to twice daily.

In 1969, the plaintiff, as a subcontractor to the Munich production company GEO-Film, created a trailer proposal for the first episodes of the series 'Tatort', which had been commissioned at the time by Bavarian Broadcasting (Bayrischer Rundfunk) and West German Broadcasting (Westdeutscher Rundfunk), and received for this a one-time, final buy-out payment of approximately €1,300. This proposal was adopted for the series and, as the sole opening sequence from that era in German television at all, is still used as the opening to every episode of the series to this day. The plaintiff, who had designed the storyboard and also participated in the filming, filed suit in 2009, among other things, for further reasonable remuneration and naming as author, and initially asserted a right to disclosure regarding the extent of exploitation and revenues from the broadcasters.

These defended themselves on the basis that the opening sequence was of only subordinate importance to the series and had no effect on the success of the film. The plaintiff was in any case not the sole author and therefore was only entitled to assert such claims jointly with the other authors. Finally, lump-sum payments were also customary in the industry and thus legally binding, as evidenced by the fact that further reasonable remuneration could only be demanded in the event of particular economic success. However, the opening sequence had contributed only insignificantly to such success. Furthermore, naming the author for trailers was ruled out, as such naming was not customary in the industry and was not possible for reasons of space.

Court's decision

The Regional Court (LG) Munich I initiallyJudgment of 24.03.2010 – 21 O 11590/09granted the plaintiff's request for disclosure and naming as author in large part in a partial judgment. It ordered both Bavarian Broadcasting (BR) and West German Broadcasting (WDR) in very far-reaching measure to provide disclosure regarding the extent of the use of the series and the revenues achieved thereby, including ancillary revenues from ancillary rights, merchandising, etc. With respect to naming as author, it ordered the broadcasters, on pain of a penalty of €250,000 for each breach or imprisonment of 6 months, to cease displaying the Tatort opening sequence without naming the plaintiff as the author, or, as had occurred on the internet, designating a former editor as the inventor. The plaintiff, as author of the film work and additionally as author of a pre-existing work, the storyboard, could under both old and new law assert a claim for modification of the contract to provide for further remuneration. Even if the opening sequence were merely an ancillary work, the claim only required the copyright protection capability of her contribution and no particular effect on the success of the series itself. She was also solely entitled to assert these claims, since the right to further remuneration did not derive from the joint copyright itself, but from the contracts concluded directly between the parties. Although a buy-out payment was not automatically always inappropriate, it was certainly so whenever the work was used on an ongoing basis. Taken together with the very extensive scope of use and the 'cult status' of the opening sequence, this was sufficient evidence here of a glaring, indeed gross disproportion.

On appeal, the Higher Regional Court (OLG) Munich thenJudgment of 10.02.2011 (Az. 29 U 1749/10)largely granted the appeal and set aside the first instance judgment in this respect.

For a claim to further remuneration by the author, owing to the requirement of a 'glaring disproportion', it was necessary that the contribution of the author claiming further remuneration was not merely of subordinate importance to the overall work. While the opening sequence, through regular broadcast over 40 years, had achieved a high degree of recognition among the population, this consideration did not justify the assumption that the opening sequence at issue constituted a material contribution to the overall work, namely the subsequent crime film. The opening sequence had only an identifying function within the context of the overall work of the 'Tatort' crime series and indicated to the viewer in a striking manner the programme to follow. The contribution of the opening sequence to the television film as a whole was limited to this. The opening sequence was not broadcast on television for its own sake, and its frequent use was primarily attributable to the high acceptance of the subsequent, usually 90-minute films of the crime series 'Tatort', so that from the court's perspective there could be no reasonable doubt that the television viewer did not watch 'Tatort' because of its opening sequence.

The Higher Regional Court (OLG) Munich, however, also upheld the claims granted at first instance for failure to name co-authorship.

Conclusion

Even if the starting point of the OLG, to examine whether the 'Tatort' opening sequence played only a subordinate role in the success of the overall series, one that excludes a glaring disproportion, is correct, the OLG must be asked whether it applied the correct points of reference in doing so, and what it is that accounts for the success of the series:

In the 'overall work' comprising over 800 episodes over the past forty years, there was only a single 'police commissioner' who participated in 60 or more episodes (Miroslav Nemec as Chief Superintendent Ivo Batic), the director with the most episodes is Hartmut Griesmayr with 26 episodes, and the author to whom the most episodes can be attributed is currently Felix Huby with 33 episodes (source: imdb.com). Nevertheless, the series is more successful than all other comparable crime series, whose episodes were partly directed by the same directors and written by the same authors. It is therefore reasonable to assume that the Tatort 'series' nonetheless has a distinctive feature that distinguishes it from other approximately 90-minute crime formats.

Since the opening sequence is one of the few essential elements that in all over 800 episodes to date was not merely similar, but identical, the question arises whether the Higher Regional Court gave sufficient weight to this in its assessment of the evidence.