Ghostwriter must hand over Kohl tape recordings

The Higher Regional Court (OLG) Cologne had to decide in the context of an appeal proceeding whether a journalist retains decision-making authority over the content of tape recordings and their use after termination of the ghostwriter contractual relationship, or whether these rights lie solely with the person interviewed.

A journalist wanted to write the biography of former Federal Chancellor Dr. Helmut Kohl as a "ghostwriter". For this purpose, he conducted several extensive conversations with the former Federal Chancellor and recorded them on tape. However, Mr Dr. Kohl terminated the contractual relationship existing between him and the journalist prematurely and demanded the handover of the tapes in the ghostwriter's possession.

After the author refused to hand over the tapes, the former Federal Chancellor sued before the Regional Court (LG) Cologne for return of the recordings and prevailed. With the present appeal proceeding, the journalist now opposed the first-instance decision. The conversations conducted with Mr Dr. Kohl were comparable to interviews which a journalist conducts for the purpose of reporting on current events and thus fell within the scope of freedom of the press are protected and need not be handed over.

Court's decision

By Judgment of 01.08.2014 – Az. 6 U 20/14 – the Higher Regional Court (OLG) Cologne upheld the decision of the lower court.

Helmut Kohl acquired ownership of the tape recordings and thus a corresponding right to claim their return through the recording of his voice, since by discussing and thereby processing the tape recordings, he had created a new movable asset which was more valuable than the blank tapes. Therefore, the former Federal Chancellor was to be regarded as the creator of the tape recordings.

It follows from the contractual arrangements concluded between the parties and the publishing house that the decision-making authority over the content of the recordings and their use was ultimately to lie solely with the former Federal Chancellor. The situation was therefore not comparable to an interview which a journalist conducts for the purpose of reporting on current events.

A right to possession therefore did not accrue to the journalist. In particular, he could not rely on an alleged promise from the plaintiff that he might publish the tapes after the Chancellor's death. If such a promise had existed, its foundation would have been withdrawn by the early termination of the parties' cooperation.

Conclusion

If a ghostwriter wishes to retain and accordingly publish tape recordings made in preparation for a biography of a third party after termination of the contractual relationship, the journalist would have to agree this contractually. Otherwise, the rights to the tapes accrue to the person interviewed.