BGH confirms "fairness compensation" for dubbing actor

Jack Sparrow: having
an Orff day ...?

Our readers may recall the case of Marcus Orff (spelled like the famous composer of the same name, see IPKat post here), a German dubbing actor who lent his voice to Johnny Depp (playing Jack Sparrow) in the German language version of Pirates of the Caribbean.  In an appeal arising from a case initially decided by the Berliner Kammergericht in 2011 (case reference 24 U 2/10 of 29 June 2011) the German Bundesgerichtshof (BGH) had to decide on Mr Orff’s claim for additional compensation based on §32a(2) of the German Copyright Act (UrhG).

By way of background: §32a UrhG provides for so-called “fairness compensation” in cases where there is a disproportion between the fee paid and the success of the work or creation.  Bearing in mind the success of the Pirates of the Caribbean movie franchise at the German box office, as well as its related DVD releases and the TV licensing of the films, Mr Orff was of the view that his fee of roughly 18,000 Euros was not a fair consideration for his contribution: as the German voice of the lead actor he had made a decisive contribution and should therefore be paid a supplemental fee of 180,000 Euros.  Even though §32a UrhG expressly refers to 'authors' it is also applicable to performers, see §79(2)(2) UrhG. Under German copyright law, performers (such as actors and dubbing actors) can be considered as authors provided that their creative contribution to a work amounts to an intellectual creation in its own right. In this case, however, the only question to be decided was whether the compensation received by Mr Orff was adequate.

A great cinema? Somewhere you can
comfortably view "Pirates of the Caribbean"

The Berlin court had held that, while there could theoretically be cases where a fee received was disproportionate to the success of a film and an artist may be entitled to a supplemental fee, this was not the case here: a dubbing actor was not entitled to “fairness compensation” where his actual contribution was of merely ancillary importance to the film, for example where a film consisted mostly of technical effects, had numerous supporting actors and where the lead actor appears only infrequently. Looking at the German version of the Pirates of the Caribbean, the Berlin court found that it mostly consisted of technical effects, had numerous extras and supporting actors and that the actual contribution of the main actor, and thus of his German voice Mr Orff, was comparatively small. As such, the court concluded that Mr. Orff’s contribution to the films -- while not insubstantial -- was certainly covered by the fee already paid to him. 

Forget the cash,
just give me
the sparrow

On appeal, the BGH disagreed with the Berlin court and held that Mr Orff was indeed entitled to further compensation (case reference I ZR 145/11 of 10 May 2012).  The BGH took the view that the contribution of a dubbing actor who lends his voice to one of the main characters of a film was not of mere ancillary importance to the overall film and that the fee paid was not a fair consideration for his contribution.  Bearing in mind the success of the film, there was a disproportion between the fee paid and the success of the work.

Referring to its earlier case law in relation to the old version of §36 UrhG, the court made it clear that §32a UrhG may indeed be applicable to the work of dubbing actors who lend their voice to main characters of a film, provided their contribution was not merely "marginal". The BGH expressly disagreed with the lower court and found that Jack Sparrow's part and his appearance was more than just of marginal importance.

The court thus clarified that a dubbing actor may be regarded as a "co-author" of a work.  In its decision the BGH also provides quite detailed guidance as to when one may assume a disproportion in the sense of §32a UrhG and confirms that financial gains based on distribution of the (dubbed) film abroad can be relevant if the parties have agreed on German law as governing law.  The case will now be remitted to the Kammergericht.