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Sunday, 22 February 2009

Will German cameraman's compensation claim get The Boot?

The IPKat is delighted to have heard once again from his friend and increasingly frequent contributor Thorsten Lauterbach (Aberdeen Business School, The Robert Gordon University), who has sent him this revealing account of a provision of German law that allows an under-remunerated author to squeeze more money out of a licensee who successfully exploits his work:

"The Sueddeutsche Zeitung newspaper has reported that famous cameraman Jost Vacano is seeking fair remuneration for his input into the making of "Das Boot" before the Munich District Court (Landgericht Muenchen I). Many will recall "Das Boot" (which both hit the cinemas as a feature-length movie as well as TV in a six-part series), a story about a German submarine during World War II. Vacano is responsible for the unforgettable pictures and feeling of claustrophobia, panic and hope, giving viewers the impression to be right among the movie's protagonists.

The technology available at the time the movie was made was not up to that sort of camera work, so Vacano (an electrical engineer by trade) had to undertake much innovative development work himself in respect of lighting and camera equipment. For example, he developed a "Gyroscope" which enabled him to rush through the narrow boat, steady camera in hand, while armoured like an American Football player. He also oversaw the putting together of a purpose-built camera which was required specifically for the making of the movie. He was nominated for an Oscar for his work and won various prizes/awards in Germany. His work is of global renown, having worked with directors like Petersen, Schloendorff and Verhoeven and helped to make blockbusters like 21 Hours at Munich, The Never-ending Story, Robocop, Total Recall, Hollow Man, Starship Troopers, The Lost Honour of Katharina Blum, Dear Fatherland Be At Peace, as well a s many TV productions.

In respect of "Das Boot", Vacano's claim is based on the German Copyright Act ("Urhebergesetz"). While he was recognised as joint author of the movie and he had conceded limited exploitation rights to producers Bavaria Film, he argues that the agreed remuneration for that concession was strikingly disproportionate to the revenue derived from the commercial exploits by Bavaria under §32a of the Act. His lawyer expanded on this in an interview with the newspaper, maintaining that according to that provision there had to be a strict differentiation between the input by Vacano and the remuneration for the concession of user or ownership rights. However, having been paid roughly £20 an hour (amounting to around £9,000 overall) did not leave a lot of scope for fair remuneration, considering the likely money made from commercially exploiting the movie worldwide. Targets of Vacano's legal action are, apart from Bavaria, the West German Broadcasting Station (WDR) in respect of commercially exploiting the movie and the series via TV broadcasting, as well as Euro-Video Ltd, a subsidiary of Bavaria and distributor of videos and DVDs. Vacano seeks access to the respective user licensing and related agreements which would then enable his legal team to calculate an exact amount of compensation, likely to reach a six-figure sum.

Bavaria have largely been tight-lipped but declared that they did not regard Vacano's claims as justified. They also argue that Vacano, at the time the movie was made, had received remuneration 40% above the tariff ceiling amount. In addition, they claim that the "break-even" point - i.e. the point when Bavaria starts to make a profit from commercially exploiting the movie, merchandise etc - has not yet been reached. His lawyer responded to the latter with traditional sarcasm, accusing Bavaria of employing "creative accountancy methods", saying that Bavaria will find it difficult to convince the court on 5 March that "Das Boot" has not yet made a profit. It remains to be seen which party is going to be sunk by the court.

Legal note: when authors grant to others the right to exploit commercially the work they created, they are usually the party in a much weaker bargaining position. This may be particularly so in case of young or unknown authors who, in order to become known by a wider audience, often agree to accept paltry sums by way of royalties or remuneration in return. In exceptional cases, German copyright law assists such authors to get a fairer share for their creative output. If the work proves to be a great success and the author’s remuneration originally agreed is totally incongruent with profits made by the right holder, a court may agree to adjust the contractual provisions.
Until 2002 authors had to rely on the “bestseller rule” contained in §36 of the German Copyright Act in order to claim better remuneration than was originally agreed in the contract with the right holder. Successful claims by authors, however, were very rare due to the high hurdle set by the provision: the claimant had to prove that his payment was “grossly disproportionate”. Many commentators argued that the law required reform, and German parliament eventually introduced §32a.

At first, the proposal was for the establishment of a general, inalienable right to appropriate remuneration for authors vis-à-vis any user of the respective work. However, this proved too revolutionary to get through parliament, so a watered down “fairness rule” made it on to the statute book: authors retain their claim based on contract law, but they would also be entitled to a settlement based on fairness for ex post compensation claims if there is an “exceptional/striking imbalance” between the rewards attained by the right holder and the corresponding reimbursement which was originally agreed as going the author’s way. While the provision applies to all contracts between authors and right holders, irrespective when these were agreed, the “exceptional imbalance” test only looks at amounts of money made since 29 March 2002, when the law came into force. §32a particularly applies to authors and joint authors of films which under German Copyright Law involves the principal director, the cameraman/director of photography, the cutter and others if they make a telling contribution to the overall creation of the work. The old (and still operational) §36 only allows authors of primary works to stake a claim – in relation to films that would be the author of the screenplay, soundtrack etc. So, if only that provision was available, Jost Vacano could not have been able to bring his action".
Many thanks, Thorsten, for this insight into remuneration for creators.  The IPKat wonders whether, in the light of the possibly confidential nature of the commercial data that will be discussed in evidence, this claim will be heard in camera. 

Cure your own claustrophibia here
Puss in Boots here

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