Stake hammered into German copyright law on actor's fee

In renegotiation of the actor’s fee due to great audience success – a repeat fee – actors have a right to information, including advertising income. This “six-pack” ruling by the German LG Munich has a signal effect for film and series.

“Sechserpack” – a German series on continuous repeat

The Munich Regional Court (LG Munich) has issued a ruling with signal effect for all actors: in the case of renegotiation of the actor’s fee due to great audience success, actors have a right to information about the broadcaster’s income, including its advertising income. This ruling by the LG Munich in the “Sechserpack” case has a signal effect for actors and broadcasters of films and series.

The German actress Nina Vorbrodt, who starred in the Sat 1 series “Sechserpack” (in engl: “six-pack”, a comedy around 6 main characters) from 2003 to 2010, brought the case to court. The series was successful, belongs to the comedy genre – so it’s no wonder that Sat 1 still keeps this series running in Germany, because the repeats also find their audience. As of 28 December 2019, the complete 7 seasons of the series Sechserpack have been broadcast 8294 times in Germany. On average, this results in about 90 repeats per episode.

Actor’s fee for successful series and films

In principle, an actor/actress can demand a repeat fee under copyright law, dependent on success, so to speak (§ 32a German UrhG). This is because the precondition is that a contractual relationship exists between the actor / actress and the broadcaster, which has transferred or granted rights of use to the broadcaster, but the consideration agreed for this is conspicuously disproportionate.

BGH: Judgment “Das Boot”

The BGH had already confirmed this as a fundamental ruling in 2020, in its decision “Das Boot” I ZR 176/18 – Das Boot II, in which the cameraman Jost Vacano of the internationally famous film “Das Boot” and simultaneous co-author was granted the right that the broadcaster ARD must in principle pay him repeat fees. The cameraman Vacano had been paid a lump sum (“buy-out fee”) for the film.

For repeat broadcasts, a repeat fee amounting to a certain percentage of the initial fee agreed for the first broadcast of the film was to be paid, the BGH ruled as a fundamental decision.

This is of course complicated by collective agreements. This also played a role in the “Das Boot” case. The BGH clarified that the appropriate remuneration could also be determined on the basis of the repeat remuneration to be paid according to the collective agreements. An estimate based on the previously agreed lump-sum remuneration was not sufficient for this purpose.

Update of April 6, 2021: ruling on remuneration must be renegotiated!

On April 1, 2021, the BGH overturned the ruling of the OLG Munich from 2017 (I ZR 9/18); it must be renegotiated. The BGH cited as a reason that systematic errors were made in the calculation of the possible claims to the repeat remuneration.

LG Munich: stake into copyright law on actor’s fee

In the case of “Sechserpack”, the Regional Court of Munich I has now upheld the action brought by the actress Vorbrodt. This action by Vorbrodt against Sat 1 was filed as a so-called step-by-step action, which means that initially no concrete fee claims had to be made and were not made. Rather, the first stage of the proceedings was about asserting the right to information about the scope of the exploitation of the series “Sechserpack” as well as the income generated with it.

This was largely justified, ruled the LG München. According to the court, the data submitted on the number of broadcasts and repeats as well as the audience ratings provided clear indications that the comedy series in question was exploited with above-average success compared to other comedy formats.

What is particularly important about this judgement, however, is what the LG München said about the “revenues generated”. The broadcaster Sat 1 was expressly ordered to provide information about the revenues generated – including the advertising revenues.

This makes one sit up and take notice. The advertising revenue generated by a private television station by broadcasting a series or a film has never before been declared subject to disclosure in court. This ruling by the LG Munich therefore has a signal effect for actors and broadcasters of films and series, because it is now part of the case law to which one can refer in one’s own proceedings. And it can be assumed that the advertising revenues of private broadcasters account for a lion’s share of the total income from the broadcasting of films and series.

Sat 1 can appeal, and this is quite certain in view of the large sums of money and the signal effect at stake here. So even if the case about the series “Sechserpack” is still far from being finally decided, the LG Munich has nevertheless hammered a stake into German copyright law – for actors and actresses and also for the German broadcasters.