United States: Trick Or Treat: Judgment Grants "Das Boot" Cameraman Increased Remuneration But Cancels Out Interest Claims

Last Updated: October 15 2018
Article by Christiane Stuetzle and Patricia C. Ernst

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.”

Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Morrison & Foerster LLP. All rights reserved

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions