Buy-out agreement for journalistic works valid?

The Higher Regional Court (OLG) Munich had to decide whether the general terms and conditions used by the Süddeutsche Zeitung publisher, which contain a buy-out agreement in the acquisition of rights with journalists, violate applicable copyright law.

The publisher of the Süddeutsche Zeitung uses general terms and conditions in which the publishing company is granted extensive and exclusive rights when journalists place their articles at the disposal of the newspaper for publication. The regional association of the Deutscher Journalistenverband (DJV) demanded that the publishing company cease use of these terms and conditions clauses, as it saw in them an unreasonable disadvantage to the authors. Following a cease-and-desist letter, the publishing company refused to do so, whereupon the DJV requested judicial prohibition of use in the context of preliminary injunctive relief.

Court's Decision
The Higher Regional Court (OLG) Munich recognised in its judgment of 21.04.2011 – Az. 6 U 4127/10 (press release) in the use of the disputed terms and conditions clauses an unreasonable disadvantage to the authors.

The third-party exploitation right to be granted by authors falls within the scope of application of the copyright contract law principle of participation, according to which the author is in principle to be appropriately involved in any exploitation of his work, insofar as the compensation agreement does not provide for the author's participation from the grant of third-party rights, but rather this is covered by the compensation arrangements otherwise in place.

In the opinion of the Higher Regional Court (OLG) Munich, the impugned general terms and conditions do not sufficiently protect the interests of authors because they do not ensure that authors are appropriately involved in the economic exploitation of their works.

Conclusion

No appeal is possible against the decision rendered so far in the context of preliminary injunctive relief proceedings. However, it is likely that the present proceedings will be followed by substantive proceedings and that the parties will seek clarification by the court of last resort regarding the admissibility of so-called buy-out agreements in general terms and conditions.