Subsequent remuneration of a journalist?

Can a freelance photographer-journalist who has concluded a contractual agreement with his publisher to have his photographs published for EUR 10.00 per photo contribution in daily newspapers assert a claim for copyright-based subsequent remuneration on the grounds of unreasonably low remuneration?

A journalist had worked for a newspaper publisher based in Essen as a photographer for many years and regularly supplied them with photographs which were published as photo contributions in various editions of daily newspapers published by the publisher. In this context, the photographer-journalist supplied a total of 1,329 photo contributions in 2010, a total of 1,277 photo contributions in 2011, and a total of 891 photo contributions in 2012.

For the photographs, the journalist received a net remuneration of EUR 10.00 per contribution. The remuneration was contractually agreed upon independently of the size of the published photograph and the circulation of the respective newspaper. The Joint Remuneration Rules for Photo Remuneration for Freelance Professional Journalists determine photo remuneration according to the size of the photograph and the circulation strength of the newspaper. In this regard, net remuneration for first publication rights ranges between EUR 19.50 and EUR 75.50.

The journalist demanded appropriate subsequent remuneration from the publisher under copyright law because he considered the remuneration agreed upon with the newspaper publisher to be unreasonably low and was awarded judgment in the first instance before the Regional Court (LG) Bochum. The Regional Court ordered the publisher to pay subsequent remuneration of EUR 76,000.00, whereby the remuneration already paid by the publisher was credited.

The newspaper publisher appealed against this decision. From the publisher's perspective, a remuneration of EUR 10.00 was appropriate and customary in the industry at that time for a photograph published in the local section of a regional newspaper with a circulation of between 2,500 and 13,000 copies. This was all the more true since the plaintiff had granted the defendant only a simple right of use and the author thereby retained the possibility of exploiting it in other ways. Furthermore, the Joint Remuneration Rules for Photo Remuneration for Freelance Professional Journalists did not come into force until 2013.

Decision of the court

By judgment of 11.02.2016, the Higher Regional Court (OLG) Hamm (Az. 4 U 40/15) ruled that the newspaper publisher had not paid the photojournalist an appropriate remuneration in the years 2010 to 2012.

The contract was to be adjusted to the level of the joint remuneration rules for photo remuneration for freelance professional journalists, even though these remuneration regulations did not come into force until 2013. Nevertheless, the remuneration rules could be used as a benchmark for appropriate remuneration.

Copyright law is characterized by the guiding principle of ensuring that the author is appropriately compensated for all proceeds from the exploitation of his work or performance. Accordingly, the author may demand from his contracting partner that, if the remuneration agreed upon with that partner is not appropriate, the contract be corrected in such a way that the agreed remuneration for the granting of exploitation rights be replaced by appropriate remuneration.

Conclusion

Authors have a claim for subsequent remuneration despite valid contracts if they have not been appropriately compensated for their works. In individual cases, this can prove costly for the author's contracting partner.