a) The author, a gross negligence as defined in § 199 Abs. 1 No.. 2 BGB be blamed not only the absence of market observation.
b) If the author due to verifiable facts clear evidence of a claim under § 32a Abs. 2 Sentence 1 Copyright Act, he can not quantify this claim but, because he so far details of the third party needed, directed against the claim, is it unreasonable regularly bringing an action levels, to inhibit the statute of limitations.
c) The synchronization performance of a synchronous speaker for the person of a leading actor of a movie are usually not so marginal channel, that the scope of § 32a of the German Copyright Act is generally excluded.
JUDGMENT BGH I ZR 145/11 from 10. More 2012 – Pirates of the Caribbean
Copyright Act § 32a; Civil Code § 199 Abs. 1 No.. 2, § 242 D
BGH, Judgment of 10. More 2012 – I ZR 145/11 – KG Berlin
LG Berlin
The I. Civil Division of the Federal Court of the oral negotiation 10. More 2012 by the presiding judge Prof. Dr. Bornkamm and judges Pokrant, Prof.. Dr. Büscher, Dr. Koch and Dr. Loeffler
hereby:
On appeal by the plaintiff, the judgment of the 24. Civil Division of the Court of Appeal 29. June 2011 by rejecting the further appeal in respect of expense and repealed, as the Court of Appeal in relation to the defendant 1 the action with respect to the information request and the request for payment is not yet quantified due to the theatrical release of the films “Pirates of the Caribbean II” and “Pirates of the Caribbean III” rejected and in relation to the defendant to 2 the appeal of the plaintiff against the judgment of the Civil Division 15 the District Court of Berlin 15. December 2009 to the extent of calling for applications 2 a and b of the plaintiff (To provide information- and an unspecified payment request due to video- and DVD release of the film Pirates of the Carib-bik I to III) has rejected.
In the scope of the waiver, the thing is for a new hearing and decision, also about the cost of revision, referred back to the loading rufungsgericht.
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Facts:
The plaintiff is an actor and voice actor. For the German-language version of the feature film productions “Pirates of the Caribbean” (Theatrical release in Germany on 2. September 2003), “Pirates of the Caribbean II” (Theatrical release in Germany on 27. July 2006) and “Pirates of the Caribbean III” (Release date in German-land on 24. More 2007) each synchronized he played the lead role of Harry Potter “Jack Sparrow”. Contractor of the plaintiff was in the pro-duction “Pirates of the Caribbean” (following “Pirates of the Caribbean I”) the B. AG and the productions “Pirates of the Caribbean II” and “Pirates of the Carib- bik III” the F. AG. The plaintiff was awarded for the first production on the basis of the basic contractual salary of 79 € and an additional fee of 3,50 € je Take (spoken section, Sentence or phrase, Scene) a total fee of 1.308 €, for productions “Pirates of the Caribbean II and III” a flat fee of each 4.000 €. In return, he transferred all rights to use the services artistic services to its respective contractors.
The Germany-based Defendants 1 and 2 and the US-based defendant 3 are part of the Walt Disney Corporation, who has produced the feature films in question. The Defendants 1 The revenues from the exploitation of cinema films, the defendant to 2 the proceeds from the video- and DVD market in Germany flowed.
The plaintiff alleged, the defendant to 1 and 2 had the Redeemer se from the theatrical film and video- and DVD marketing moreover German speaking (Switzerland, Austria) get. The applicant considers, him because of the outstanding success of the films could use a
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more appropriate sharing of benefits to, that the defendant would have received from the exploitation of its services.
The plaintiff, the defendants in the action by stages made to information and payment claim, he said to against the defendant 1 The claims regarding the theatrical release, against the defendant to 2 with regard to the video, DVD- evaluation and television and to the defendant to th 3 has invoked in regard to broadcasting. The originally against the defendant 1 because of the video- pursued and DVD exploitation claims, the plaintiff declared vacant.
The defendants opposed the application. The Defendants 1 and 2 have because of the claims with respect to the film “Pirates of the Carib-bik I” raised the statute of limitations. Defendant 3 has turned against the international jurisdiction of the German courts.
The district court judgment in part by the defendant to 1 with respect to the films “Pirates of the Caribbean II and III” requesting information pursuant to convicted, what are their revenue accrued from the commercial and non-commercial demonstration of the German theatrical versions of the films mentioned, after on-coded calendar years and territories (Germany, Switzerland, Austria) and under breakdown of admissions. Regarding the unilaterally declared done for part of the claim stated, that the defendant 1 is obliged, to bear the attributable portion of the costs of litigation. Moreover, the district court except to the second stage against the defendant 1 asserted payment application because the film production “Pirates of the Caribbean II” and “Pirates of the Caribbean III” the action against the defendant 1 and 2 to be unfounded, and working against the accused 3 dismissed as inadmissible.
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Against this decision have the plaintiff and the defendant to 1 Loading rufung inserted. Defendant 1 has sought in its appeal, the complete rejection of the claim. After withdrawal of the appeal against the defendant 3 the applicant sought on appeal,
1. Defendant 1 to condemn,
a) him concerning the film production “Pirates of the Caribbean I” Information about GRTOBJAUT, what are their revenue accrued from the commercial and non-commercial demonstration of the German theatrical version of this film, broken down by calendar year and territories (Germany, Switzerland, Austria) and at the breakdown Kinobesucherzah-len,
b) to him a magnitude to be determined more appropriate participation plus VAT and interest thereon in the amount of five percent more than the base rate of the European Central Bank 5. July 2008 to pay as compensation fairness of the evaluation of the film called Film Production;
2. Defendant 2 to condemn,
a) him with regard to the German versions of the film production “Pirates of the Caribbean I”, “Pirates of the Caribbean II” and “Pirates of the Caribbean III” To provide in-formation, what their revenue from the video- DVD and marketing of the said film productions accrued, broken down by calendar year and territories (Germany, Switzerland, Austria) and specifying the quantities of sold repro-ment pieces,
b) him a quantitatively be determined more appropriate participa-tion plus VAT and interest since therefrom in the amount of five percentage points above the base rate of the European Central Bank, the 10. January 2009 fairness as compensation for the exploitation of these film productions in the home entertainment (Video/DVD) to pay;
3. Defendant 2 to condemn, him with regard to the German-Fas measurements of film productions “Pirates of the Caribbean I”, “Pirates of the Caribbean II” and “Pirates of the Caribbean III”
a) To provide information, often referred to as productions in German-speaking broadcast area (Germany, Austria, Switzerland) by the defendant to 3 and / or have been broadcast from their licensed broadcasters and which proceeds to her and / or the defendant 3 it accrued are, broken down by calendar year and territories (Germany, Switzerland, Austria),
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b) to him a to be determined more appropriate participation zuzüg-tion taxes and interest thereon in the amount of five percent-lated via the base rate of the European Central Bank since 31. March 2010 fairness as compensation for the revenue inflow of afore-a) to pay.
The appeals court rejected the arguments of the plaintiff and the action on the defendant's appeal to 1 dismissed in its entirety (KG, GRURRR 2011, 409).
Directed against this, the Court of Appeal approved the revision of the applicant, with which he pursued his claim for relief in the amount of the second instance applications. The Defendants 1 and 2 apply for, dismiss the appeal.
Reasons:
A. The Court of Appeals for the defendant against the 1 and 2 alleged to information- and claims for payment in accordance with § 32a Abs. 2, § 79 Abs. 2 Copyright Act, § 242 BGB denied. In support, it stated:
The right to information which claims were not met, because EXIST been no tangible evidence, that the plaintiff against the defendant payment claims under § 32a Abs. 2 Copyright Act have. The applicant has provided a voice actor in relation to the contributions of other artists and related rights only a minor contribution to the German language version of the film, regularly could give no entitlement to compensation fairness. The contract with the plaintiff had adequately its contribution to the flat fees in accordance with § 32
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Abs. 2 Copyright Act settled. Continued participation in accordance with § 32a Abs. 2 Copyright Act ste-he is not the plaintiff, therefore, to, therefore dismissed the action pursued by the levels of payment requests had.
The claims about the film “Pirates of the Caribbean I” moreover, they are at the end of 31. December 2007 and thus in the years before 2008 barred action brought.
Defendant 1 should not be compelled, to bear the share attributable to the for-done he cleared part of the action costs, because the plaintiff because of his subordinate artistic contribution in this respect has no claim under § 32a Abs. 2 Copyright Act entitled.
B. This revision had partial success. They lead to the repeal of the appellate judgment and remand the case to the Court of Appeal, so far as it is to the right to information against the defendant 1 because of Kinoaus evaluation of films “Pirates of the Caribbean II” and “Pirates of the Caribbean III” and the here-yet unknown amount of cash related to the request and the Auskunftsan claim against the defendant 2 because of the video- and DVD release of the films “Pirates of the Caribbean I-III” (Appeal by the applicant to 2 a) related thereto and the unknown amount of payment request (Appeal by the applicant to 2 b) has deemed unfounded. The ongoing revision is unfounded.
I. Defendant 3 not appeal the defendant Revisionsverfah-procedure. The revision results in the defendant 3 in the revision of publication, however ne-ing the defendant 1 and 2 as a defendant in at. Nevertheless, the re-vision not against the defendant 3 directional. Shortcomings in the party name
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are irrelevant in appeals, if in view of the circumstances no reasonable doubt as to the person of the plaintiff's appeal and the defendants insist (vgl. BGH, Judgment of 11. July 2003 V ZR 233/01, NJW 2003, 3203, 3204; Decision of 22. November 2005 XI ZB 43/04, NJW-RR 2006, 284 Rn. 8). The necessary clarity on the defendants may also be obtained by way of interpretation of the appeal in writing and the date of the expiry of the time for appeal this docu-ments. These presently include the appellate decision, which was presented by the revision of the revision writing. It follows from this is, that the defendant 3 the only thing initially was involved in the appeal. The plaintiff has against the defendant 3 Appeals directed to the appellate justification withdrawn. On appeal, the defendant was to 3 Apart from the decision on costs then no longer partici-ligt. There were therefore already in Revisionseinlegung no reasonable doubt, that the revision is not against the defendant 3 directed.
II. Revision of the plaintiff in relation to the defendant to 1
The revision of the plaintiff against the defendant 1 has only partially suc-cess.
1. With the revision followed the plaintiff against the defendant 1 his right to information and related thereto are not demanding payment figured because of the movies “Pirates of the Caribbean I-III” more. The revision has taken account of the requests for revision to the second instance of the plaintiff regarding Opinion. His second instance Opinion also recognized the disputed claims for the films “Pirates of the Caribbean II and III”, because the plaintiff to reject the appeal of the defendant 1
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has requested, who had been sentenced by the district court with respect to these films.
2. This revision had no success, insofar as they apply, however, that the appellate court to provide information to- and the payment claim under § 32a Abs. 2, § 79 Abs. 2 Copyright Act, § 242 BGB against the defendant 1 with regard to the evaluation of the cinema film “Pirates of the Caribbean I” has deemed unfounded (to below B II 2 a bus c). Without success the attacks of the revision, however, remain, that the Court of Appeal has considered the application for a declaration of un-justified (to below B II 2 d).
a) Contrary to the opinion of the audit response, the rejection of an unknown amount of request for payment by the district court with respect to the film “Pirates of the Caribbean I” however, not become legally force. The plaintiff on the grounds for appeal 18. March 2010 Although only the Auskunftsan contract (Request to 1 a) and not even the unknown amount of payment request (Request to 1 b) announced. But that is not harmful. The provision of § 520 Abs. 3 No.. 1 ZPO, after the grounds for appeal shall contain the statement, extent appealed the judgment and the amendment is sought, requires not need a formal application. It suffices, if submitted within the period of its appeal briefs of appellate plaintiff produce all its contents after, to what extent and for what purpose the judgment should be appealed (vgl. BGH, Decision of 13. November 1991 VIII ZB 33/91, NJW 1992, 698). In case of dispute, the appellate justification clearly specify, that the appeal of the plaintiffs-gers against the rejection of an unknown amount of payment claim in relation to the film “Pirates of the Caribbean I” taught. The district court had denied the Auskunftsund the payment application on the ground, the claims were ver-
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anniversary. This view, the plaintiff in support of its appeal, both with regard to the attack on the payment request Auskunftsals.
b) The right to information against the defendant 1 due to the appreciation of the film Kinoaus “Pirates of the Caribbean I” In any case end 2007 barred.
aa) Made as of the auxiliary claim an entitlement to quantify gel-tend to information in accordance with § 242 BGB barred to the principal claim independently under § 195 BGB within three years (vgl. to § 195 BGB aF BGH, Judgment of 10. December 1987 I ZR 198/85, Wheat 1988, 533, 536 Preliminary II). Under § 199 Abs. 1 BGB starts the regular limitation period of three years, with the end of the year, in which the claim arose and the creditor has knowledge of the circumstances of the operative and the person of the debtor's knowledge or without gross negligence must obtain.
The performer may, at § 242 BGB demand information, if due to verifiable facts clear evidence of entitlement to under § 32a Abs. 2 Copyright Act are made (vgl. BGH, Judgment of 4. December 2008 I ZR 49/06, Wheat 2009, 939 Rn. 35 = WRP 2009, 1008 Mambo No. 5). Regarding the question right to information under § 242 BGB then occurs on the knowledge or grossly negligent ignorance of the claimant tangible clues, which to a striking disparity in the income and benefits of the defendants 1 Evaluation of the film in terms of § 32a Abs. 2 Sentence 1 Close Copyright Act can. Given to each plaintiff is sufficient knowledge or grossly negligent lack of an outstandingly successful theatrical release of the film “Pirates of the Caribbean I” by the defendant to 1. Gross negligence relies an objectively serious and subjectively excusable breach of the requirements of the traffic required-
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sary care advance. Grossly negligent ignorance exists, if the creditor lacks the knowledge, because it violates the act in due diligence in unusually rough dimensions and not entirely obvious considerations employed or not, the attention has, what would each have to be clear. He personally has a heavy duty in violation of their own affairs of prosecution claim may be accused (vgl. BGH, Judgment of 10. November 2009 VI ZR 247/08, NJW-RR 2010, 681 Rn. 13; Judgment of 28. February 2012 VI ZR 9/11, NJW 2012, 1789 Rn. 17).
bb) This Court has consistently held, that the in-formation demanding under § 242 BGB against the defendant 1 with regard to the evaluation of the cinema film “Pirates of the Caribbean I” pursuant to § § 195, 199 Abs. 1 BGB is barred, because the plaintiff in the latest year 2004 either knowledge of the outstanding success of the film in Germany has obtained from general-to-reach sources of the success or culpable negligence knew nothing.
(1) Without success, the revision maintains, The appeal court had misunderstood the requirements, which are made on a Need To Know. How-ever, the claimant can not be blamed solely on the lack of market observation gross negligence (vgl. Czychowski in Fromm/Norde-mann, Copyright, 10. Ed, § 32nd Rn. 42; Schricker / Haedicke in Schricker / Loewenheim, Copyright, 4. Ed, § 32nd Rn. 39; Wandtke / Grunert in Wandtke / Bullinger, Copyright, 3. Ed, § 32nd Rn. 31). From a general market monitoring obligation is the Court of Appeal but not ausgegan-tions. It has rather a grossly negligent ignorance of the plaintiff from the long-running theatrical release of the film “Pirates of the Caribbean I” in all major cities, the broad resonance in the local and national press as well as in other media, and reporting in 2004 the Os-
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car nominations concluded in several categories. This tatrichterliche dignity ending, which is on appeal is limited verifiable, can no-tion error of law recognized.
Unsuccessfully challenges the revision, The appeal court had not dealt with the plaintiff's allegations, he had from the blockbuster success of the film-ter in the years 2003 and 2004 may gain because of its great profes-sional stress by numerous leading roles at the Dortmund city theater in this period no knowledge. The appeals court is applicable assumed, that the coverage of the film in question in all major German cities including Dortmund was so extensive range, have that the plaintiff should he really had no knowledge is a knowledge of the success of the film has deliberately closed.
(2) Also without success the audit alleges, the applicant was initially unaware of it, that the right to further participation in 2002 been extended to performers was. The grossly negligent lack of it does not depend on the applicable legal analysis (vgl. BGH, NJW-RR 2010, 681 Rn. 14).
c) Rightly, the appeals court also assumed, that the payment claim under § 32a. 2 Sentence 1 Copyright Act against the defendant 1 because of the feature film “Pirates of the Caribbean I” pursuant to § § 195, 199 Abs. 1 BGB ver-marks is.
For the limitation of the payment claim of the plaintiff against the defendant to 1 according to § 32a Abs. 2 Copyright Act, it depends on the knowledge or grossly negligent ignorance of the circumstances, make up a conspicuous failure ratio between the agreed consideration for the purposes of § 32a. 1
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Sentence 1 Copyright Act and the proceeds or benefits of Defendant 1 was due to the film evaluation.
This knowledge or grossly negligent ignorance of the third party is here on the defendant 1 results or benefits ahead (vgl. Schricker / Haedicke in Schricker / Loewenheim supra § 32a para. 39; Wandtke / Grunert in Wandtke / Bullinger AAO § 32a Rn. 31). These include the gross revenues generated by the recycler or his profit (vgl. BGH, Judgment of 22. September 2011 I ZR 127/10, Wheat 2012, 496 Rn. 33 = WRP 2012, 565 The boat). Sufficient, If the creditor can not be expected due to his gross negligence remained un-known facts, enforcement is-ner claims against any individual, promising, although not without risk to bring an action (vgl. BGH, Judgment of 14. October 2003 VI ZR 379/02, NJW 2004, 510; BGH, NJW-RR 2010, 681 Rn. 14). Advise the creditor's claim can not conclusively quantify. It is sufficient, if he can raise about a suit. The same applies, if the creditor reasonably be expected to bring an action by stages is. This neighborhood was present the case, because according to the argument of the plaintiff because of verifiable fact-things clear evidence of a claim under § 32a Abs. 2 Sentence 1 Copyright Act existed.
d) The revision has also unsuccessful, insofar as they apply, however, that the Court of Appeals finding the application (vgl. Ziff. 2 the country court judgment formula) has deemed unfounded.
aa) The plaintiff with the complaint by the defendant 1 also provide information on the proceeds from the video- and marketing of DVD movies “Pirates of the Ka-ribik I to III” claimed. The application, the applicant in the first instance declared in the case does not. Defendant 1 has the Erledigungserklä-
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tion not connected. The district court would then have to decide on over the ques-tion, whether the dispute has so far done in the main. It has designed what he sees as unfounded but the request as a request for a declaration that the legal obligation to replace (vgl. BGH, Judgment of 5. More 1994 III ZR 98/93, NJW 1994, 2895, 2896) and that claim is considered justified. This Court has considered the fixed position of requesting however unfounded.
bb) This Court has a right to information against the defendant to Be 1 in view of the video- and DVD release of the films “Pirates of the Caribbean I-III” denied rightly. Tangible evidence of entitlement to under § 32a Abs. 2 Copyright Act against the defendant 1 because of the video- DVD release and the applicant has not demonstrated. Otherwise does not point to the revision.
3. The revision, however, has success, insofar as they apply, however, that the appellate court to the right to information of the plaintiff against the defendant Be 1 because of the theatrical release of the film production “Pirates of the Carib-bik II” and “Pirates of the Caribbean III” has denied.
a) The appeals court, however, is the legal approach was right to consider, that an ancillary guardian then already, if due to verifiable facts clear evidence of a claim under § 32a. 2 Copyright Act are made, Provision of information (§ 242 BGB) and, where appropriate accounting (§ 259 BGB) may require, to specifically identify the additional requirements of this claim and calculate the amount to be paid to (vgl. BGH, Judgment of 13. December 2001 I ZR 44/99, Wheat 2002, 602, 603 = WRP 2002, 715 Musikfragmente; BGH, Wheat 2009, 939 Rn. 35 Mambo No. 5; Wheat 2012, 496 Rn. 11 The boat).
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b) The acceptance of the appeal court, the right to information against the defendant 1 because the films “Pirates of the Caribbean II and III” should not be based-, because the plaintiff no tangible evidence for the under § 32a. 2 Sentence 1 Have explained the Copyright Act required striking disproportion, does not withstand legal scrutiny of audit.
aa) Pursuant to § 32a Abs. 1 Copyright Act is that, which the author has granted rights of use, obliged, if the claimant, consent to an amendment of the contract-ment, when the author has granted him the right to use conditions, the cause, that the agreed counter-performance is taking into account the overall relations between the original lift and users of works in a clearly disproportionate to the income and benefits arising from the use of the work. Has transferred the copyright holder of the right of use or other rights granted and the striking disparity results from the proceeds and benefits of third parties, shall be liable to the third party to the author after § 32a Abs. 2 Copyright Act to direct the provisions of paragraph 1 taking into account the contractual relationships in the license chain. On the rights of the performer is the provi-sion of § 32a of the Copyright Act shall apply mutatis mutandis (§ 79 Abs. 2 Sentence 2 Copyright Act).
bb) The appeals court is applicable assumed, that it is by the plaintiff for the German version of the film “Pirates of the Caribbean II and III” service rendered, the synchronization in the illustrated by Harry Potter role “Jack Sparrow”, to an artistic performance as defined in § 73 Copyright Act is (vgl. BGH, Judgment of 22. September 1983 I ZR 40/81, Wheat 1984, 119, 120 = WRP 1984, 131 Synchronization spokesman; Empire / v in Black. Hartlieb / Black, Handbook of Film, TV- and video law, 5. Ed, Get. 100 Rn. 6; Buescher in
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Wandtke / Bullinger AAO § 73 Rn. 7 and 21). The plaintiff has also transferred the rights to use these services to, The Defendant 1 has evaluated.
cc) Successfully turns the appeal against the adoption of the appellate court, a mismatch in terms of § 32a Abs. 2 Sentence 1 Copyright Act between the agreed compensation to the defendant and the 1 income generated from the sale was therefore already excluded, because the plaintiff had provided only a minor contribution to the overall work.
(1) The appeals court is expected, that only un-tergeordneter contribution can be paid for through an industry-standard flat fee and such a contribution does not entitle regularly according to § 32a German Copyright Act. It has adopted, that the contributions of the plaintiff in relation to the contributions of the other creators are classified as subordinated. For the original actor's performance of Johnny Depp he can not contribute. The German version had been given to him. His own creative contribution was limited to the vocal representation of the main character in the movies. Here is his scope was rather limited. Moreover, the word determined sequences were re-ways through the use of technical tricks and effects, Ne-bendarsteller and numerous extras, prolonged battle, Action-, Horror- and Kla-maukszenen interrupted, in which the figure of the “Jack Sparrow” either no or only one of many participants in appearance and kick in which some non-verbal events dominate. For the subordinate meaning of the activity also speak of the fact, that the synchronization of the films “Pirates of the Caribbean I-III” only twelve days have covers.
(2) Which can not be agreed. The Court of Appeals for Un-law qualify as a striking imbalance in the sense of
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§ 32nd Abs. 2 Sentence 1 Copyright Act denies having regard to only a secondary activity of the plaintiff.
Following the Court's decisions to § 36 Copyright Act aF, that can be used in the context of the interpretation of § 32a of the German Copyright Act (vgl. Be statements recommendation and report of the Legal Committee on the draft law of the Federal Government to strengthen the contractual position of authors and performing artists, BT-pressure. 14/8058, S. 19), does not require the claim to further fair share, that the performance of the performer is the cause of the income and benefits, drawn from the use of the work (vgl. BGH, Judgment of 22. January 1998 I ZR 189/95, BGHZ 137, 387, 397 Comic translations I). In that regard, authors or performers, who have made relatively minor contribution to a Ge samtwerk, generally not within the scope of § 32a of the German Copyright Act excluded (vgl. to § 36 Copyright Act aF BGH, Judgment of 21. June 2001 I ZR 245/98, Wheat 2002, 153, 155 Radio plays for children). Only when completely subordinate services, commonly through a flat fee abgegol th, is a striking disparity between compensation and benefits accrued from the exploitation benefits excluded from the outset (to § 36 Copyright Act aF BGHZ 137, 387, 397 Comic translations I; BGH, Wheat 2002, 153, 155 Radio plays for children; to § 32a of the Copyright Act proposed resolution and report of the Legal Committee, BT-pressure. 14/8058, S. 19).
(3) By these standards, the adoption of the Appeal Court, The claims of the plaintiff under § 32a Abs. 2 Copyright Act are excluded only with respect to the little importance of the contribution of the applicant to complete work from the outset, no errors of law. The Court of Appeals here to high demands on the contribution of the plaintiff as a performing artist's oeuvre, the films “Pirates of the Caribbean II and III” posed. Only at
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completely subordinate, marginal contributions as it is a claim under § 32 German Copyright Act excluded. Thereof may apply to the performance of a synchronous chronsprechers, who took over the synchronization of the protagonist of a film, can not be assumed in general (vgl. Also Empire / Black in v. Hartlieb / Black supra Cape. 100 Rn. 8; Wandtke / Leinemann, TO 2011, 746).
The Court of Appeal itself recognized, that the synchronization insurance benefit for the impression of the film character is shown with a much-formative significance. This also corresponds to the findings of the Regional Court-Richts, what a human voice is a particular personality feature, for the appearance of the respective carrier and for the perception of that person on a regular basis by a third party plays an important and influential role and activities of the speaker is synchronized with the main character, one-time synchronization is not limited to the mere reading of a pre-specified text, but the vocal enactment of the respective scenes requires. Then can not normally be assumed, the synchronization performance for the protagonist of a film is of such minor importance for the complete works, that a claim under § 32a. 2 Copyright Act is excluded a priori.
Something else also does not arise from the findings of the appellate court on the relationship between the word certain scenes, in which the figure of the “Jack Sparrow” is involved, and the rest of the films in question. The remarks of the court below this are generally held th, that they do not allow the conclusion, the speech part of the main character “Jack Sparrow” was so low, because of the particular circumstances of the case assumed an only marginal significance of the synchronization performance of the plaintiff's.
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4. The revision has also success, far as it challenges the dismissal of the action against the defendant to 1 directed request for payment with respect to the movies “Pirates of the Caribbean II and III” directed. The Court of Appeals denied the still unknown amount of payment application on the ground, a claim under § 32a Abs. 2 Sentence 1, § 79 Abs. 2 Sentence 2 Copyright Act did not apply because of the low importance of the contribution of the plaintiff. Since those findings has no compo- (above marginal. 34 to 45), is the rejection of an unknown amount of payment request to that extent undermined the basis.
III. Revision of the plaintiff in relation to the defendant to 2
The audit by the plaintiff was also in relation to the defendant 2 only partial success. The revision is unfounded, insofar as they apply, however, that the appellate court to provide information that- and payment claims against the defendant 2 with regard to the evaluation of television films “Pirates of the Carib-bik I to III” has denied (Petitions for the plaintiff to 3 a and b). The auditors, however, has success and leads to the same extent for the abolition of the appellate judgment and remand the case to the Court of Appeal, so far as it claims to information and payment for the video- and marketing of DVD movies “Pirates of the Caribbean I-III” has deemed unfounded (Petitions for the plaintiff to 2 a and b).
1. This Court has the directory assistance- and the request for payment of the plaintiff against the defendant 2 according to § 32a Abs. 2, § 79 Abs. 2 Sentence 2 Denied Copyright Act with respect to only a subordinate importance of his contribution to Ge samtwerk. This assumption does not stand up from the above-mentioned reasons the revision legal scrutiny (Rn. 34 to 46).
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2. The directory assistance- and the payment of the plaintiff's claim against the defendant to Be 2 because of the video- and DVD distribution of the film “Pirates of the Carib-bik I” is not under § § 194, 195, 199 Abs. 1 BGB barred. The auditors complain about in connection with legal, that the findings of the working rufungsgerichts to the question, when the applicant had knowledge of anspruchsbegrün-Denden circumstances or there was a grossly negligent ignorance, refer only to the theatrical release of this film. This Court has not, however ascertained, when the defendant 2 with the video- and DVD release has begun and when the limitation period of the claim against the defendant 2 has been set in motion at.
3. The appeal judgment arises with regard to the denial of education kunfts- and entitlement to payment of the plaintiff against the defendant 2 because the evaluation of television films “Pirates of the Caribbean I-III” However, from other reasons such as a properly (§ 561 ZPO).
Defendant 2 has claimed, awarded no TV broadcast licenses and from the broadcast of the films in question on television made no proceeds have. This presentation, the applicant does not dispute. Then in there to dispute case against the defendant 2 neither a more extensive directory assistance- nor a claim for payment of the film evaluation in accordance with § 32a Abs. 2 Copyright Act.
IV. On appeal by the plaintiff must be remanded after the appeal judgment and annul the matter for a new hearing and decision of the appellate court, where the Court of Appeal to provide information to- and monetary claim against the defendant 1 due to the exploitation of cinema films “Pirates of the Caribbean II and III” and against Defendant 2 because of the Vi-deo- and marketing of DVD movies “Pirates of the Caribbean I-III” has denied.
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For further proceedings, the Senate indicate the following:
1. Answering the question, whether a striking disparity between the consideration for the right of use agreed terms of remuneration of the author and the results obtained from the use of the work it contracts and benefits of the third party, decided is how the Senate after the adoption of the Court of Appeal has initially agreed with the statement of the remuneration and by copy-ber of the Third outputs and benefits ahead. Then is to determine the remuneration, in retrospect-ing considered reasonable especially considering the outputs and benefits in accordance with § 32 Abs. 2 Sentence 2 Copyright Act is. Finally, to examine-ing, whether the agreed remuneration is in view of this fair compensation in a clearly disproportionate to the income and benefits (vgl. BGH, Wheat 2012, 496 Rn. 25 and 40 The boat). A striking disparity exists anyway, if the agreed fee is half of the adequate level of remuneration. Since the entire relationship of the author to be considered useful for legitimate, may, according to circum-stances, however, already minor deviations constitute a striking disparity (vgl. BGH, Wheat 2012, 496 Rn. 25 The boat; vgl. and Decision-sempfehlung and report of the Legal Committee, BT-pressure. 14/8058, S. 19).
2. When considering, whether a striking disparity in the meaning of § 32a. 2 Sentence 1 Copyright Act is, is the Court of Appeal to include the earnings and benefits in the analysis have, resulting from dissemination of negotiations in German-speaking countries (Austria, Switzerland) have shown. Abroad performed acts of exploitation in this case fall under § 32a Abs. 2 Copyright Act, because the plaintiff and his party under way. 27 EGBGB have chosen for their legal relationships governed by German law (vgl. Schulze in Dreier / Schulze, Copyright Act, 3. Ed, § 32b Rn. 2; Norde-
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man / Schiffel in Fromm / Nordemann supra § 32b para. 5). Have the copyright or neighboring rights and the power of the beneficial owner agreed to apply German law effectively, is the scope of § 32a Copyright Act in any case not be limited to acts of exploitation carried out in Germany, if, as in the case of dispute, the grant of rights is not limited to the domestic. Are the agreed remuneration, both domestic and foreign acts of exploitation settled, be included in the audit of the striking disproportion also the earnings and benefits from the use of third parties abroad.
In assessing, whether tangible evidence of a striking relationship misunderstandings exist, is the additional compensation of the plaintiff in the amount of 8.650 € for advertising not to be included. While in the examination, whether an on-overdue imbalance exists, the entire relationship of the author or rightholder, to take into account to the recycler (vgl. BGH, Wheat 2012, 496 Rn. 25 The boat). Whether such compensation is suitable, exclude on-overdue imbalance, may, however, in the first result from an NPM compared to the income generated by the parties and, where appropriate, to grant the coveted information. This question is therefore to clarify until the further step of the method of figuring the payment entitlements.
On the question, whether tangible evidence of a striking failure ratio present, is the appellate court must take into account also the fact, that the applicant for the synchronization of the films “Pirates of the Caribbean II and III” an approximately three times as high as remuneration received for the film “Pirates of the Caribbean I”. At the instants, as the compensation for the synchronization onsleistungen the plaintiff for the movies “Pirates of the Caribbean II and III” were agreed, was the success of the film “Pirates of the Caribbean I” known. Before this
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Background, the applicant will receive the higher compared to the remuneration for the first movie fee, and on this basis the question is to assess, whether there is a striking disparity.
3. The appeals court will have to consider, whether, from the na-ture of the request for information here as a term derived from good faith to give opposition-limits to the obligations. It is eliminated, if on the part of the claimant, the information required for the purpose of the contract are not necessarily required, and requires on the part of the Ver-concurred, that it can fulfill the requests for information without unreasonable expense and without prejudice to the legitimate interests (vgl. BGH, Wheat 2002, 602, 603 Musikfragmente; Wheat 2012, 496 Rn. 75 The boat).
The revision be made in this context, the requested information would affect sensitive information about in-house operations.
The plaintiff claimed to information by the defendant 1 One of the measures from the presentation of the German theatrical version of the films in question, stating the admissions of the defendant and 2 on revenue from the video and DVD market, stating the the sold quantities. That the defendants in these not further broken down
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Details have worth protecting confidentiality,, which is sufficiently serious, that behind it would withdraw the information the applicant's interest, is not explained