Jost Vacano, acclaimed cameraman of the 1980s blockbuster “Das Boot,” has landed another – though tainted – success in his chain of legal proceedings for additional remuneration on the basis of the bestseller rule contained in Section 36 of the German Copyright Act. In the most current case, the Higher Regional Court of Stuttgart awarded him about €315,000 plus VAT in additional remuneration for receipts made with the film by public broadcasters during the years from 2002 to 2016. Noticeably, and in contrast to prior decisions by other courts, Vacano has not been granted interest in the additional remuneration owed to him.

Bestseller Rule and Prior Decisions

In March 2002, a provision was implemented by German copyright law that became known as the bestseller rule, allowing creators to seek additional subsequent remuneration if their initial payment was noticeably disproportionate to the ultimate financial success of the project. On the basis of that rule, Vacano had been suing production company Bavaria Film as well as distributor EuroVideo and public broadcasters in courts in Munich and Stuttgart since 2008, claiming additional remuneration for his outstanding camera work in the film “Das Boot” (which had earned him an Oscar nomination). Initially, Vacano had been paid a flat fee equaling €100,000 today (about $122,000) and was not given a share in future profits. The main issues discussed by both courts relate to the existence of a significant disproportion and the calculation of additional remuneration, as well as qualifying receipts of distributors and the question of interest being owed under German default law.

Higher Regional Court of Munich (December 21, 2017)

The Higher Regional Court of Munich had brought an end to the lawsuit against the production company Bavaria Film, the public broadcaster WDR, and the distributor E.V.M. GmbH in its decision dated December 21, 2017. While the court of first instance had already followed Vacano’s line of argument and granted him participation in the net receipts amounting to 2.25% (from the year 2002 onward), the Higher Regional Court of Munich affirmed this decision in its main parts but granted an additional €150,000 in interest to Vacano (with interest being calculated from the day of lis pendens onward) and with the aggregate sum amounting to €588,000. The case is currently pending with the Federal Court of Germany because the opposing party had been denied the option to appeal the decision.

Regional Court of Stuttgart (November 28, 2017)

Vacano pursued his bestseller rule claim against the majority of public broadcasters separately from the aforementioned proceeding in the Regional Court of Stuttgart. By judgment dated November 28, 2017, that court granted to Vacano additional remuneration for the years from 2002 to 2016 in the amount of about €72,000 plus interest as well as further adequate remuneration for future years. Vacano and the broadcasters appealed the decision.

Current Decision

On September 26, 2018, the Higher Regional Court of Stuttgart decided that Vacano shall be granted a much higher remuneration, amounting now to about €315,000. This result relates to the court’s conviction that the calculation of the broadcasters’ receipts with the cameraman’s work shall be based on the average compensation for recurring broadcasts as set down in the broadcasters’ tariff agreements. In contrast to this decision, the preceding court had based its evaluation on hypothetical fees that would have had to be paid for a comparable license.

Noticeably, the Higher Regional Court of Stuttgart has also decided to oppose the finding of both the preceding instance as well as the Higher Regional Court of Munich that interest was due on additional remuneration owed for the years from 2002 to 2016. The granting of interest depends on Vacano’s claim qualifying as a due “monetary debt” (Geldschuld). The Higher Regional Court of Stuttgart outlined that a claim for monetary debt for interest payments requires that the underlying debt and pending claim qualify as monetary debt, i.e., a payment claim. As regards the bestseller rule paragraph, the Higher Regional Court of Stuttgart takes the view, however, that this is first and foremost a claim for contract adjustment and, as such, does not include interest payments.

The legal qualification of the bestseller rule claim has been the object of diverse discussions due to a lack of clarifying legislative materials. Some would interpret the claim as displaying a contractual connotation, while others would outline that the distributors’ liability for additional remuneration was nothing but a payment claim. On February 28, 2017, the Federal Court of Germany determined in its decision in “Derrick” that the bestseller rule not only grants a claim directed at the conclusion of an agreement regarding additional remuneration (“Contract Claim”), but also grants a direct payment claim with regard to the additional remuneration owed for past years (“Payment Claim”). This decision is silent, however, with regard to the aspect of whether or not interest applies. While Contract Claims were generally not regarded as monetary debt, Payment Claims were determined by the Higher Regional Court of Munich to qualify as such. The court argued that the Payment Claim could be enforced simultaneously with the Contract Claim as well as being enforced on its own – which meant that it was a stand-alone claim and not dependent on a prior successful enforcement of the Contract Claim. On the basis of that reasoning, Vacano’s Payment Claim triggered interest in the previous decision of the Higher Regional Court of Munich.

It is therefore a surprise that the Higher Regional Court of Stuttgart denied interest on the additional remuneration of €315,000.

What’s Next?

The decision is a good example of what can happen as a result of the many uncertainties that are still linked to the application of the bestseller rule. The obvious open question relates to creatives being entitled to be paid interest on additional remuneration owed to them, i.e., for time periods starting with the commencement of the lawsuit. In the current case, the Higher Regional Court of Stuttgart grants to the parties the option of appealing to the Federal Court of Germany. Considering that the Higher Regional Court of Munich had granted interest on the Payment Claims, an appeal of the current decision seems likely. The decision received special attention against the backdrop of the fact that a production company is currently producing a new TV show entitled “Das Boot.”