a) In determining the scope of a collecting station is to be noted, that the protection under § 4 Abs. 1 In the Copyright Act is intrinsically creative selection or arrangement of the elements.
b) An infringement of copyright in a collective work can therefore only be accepted, if the damaged work contains those structures in terms of selection and arrangement of the substance, which the collective work as a personal intellectual creation within the meaning of § 4 Identify Copyright Act. The part taken over must therefore be largely as an expression of individual choice Conception of the author of the anthology, that he is still under a § 4 Copyright Act is independently protectable part of his anthology (Confirmation of references omitted 172, 268 Rn. 25 f. Poem Title List
I).

Urteil BGH I ZR 9/12 from 27. March 2013 – SUMO

UrhG § 4 Abs. 1

…

There I. Civil Division of the Federal Court from the oral negotiation 27. March 2013 by the presiding judge Prof. Dr. Bornkamm and the judges Prof. Dr. Buescher, Professor. Dr. Schaffert, Dr. Kirchhoff and Dr. Loeffler
hereby:
The appeal from the judgment of the 6. Civil Division of the Higher Regional Court of Cologne 21. December 2011 is rejected at the expense of the plaintiff's.
Of right
Facts:
The parties are book publishers. The publishing of the plaintiff four books with pictures of the photographer Helmut Newton have appeared. These are the volumes of "Private Property" (1989, 45 Photographs), "From the photographi-tion work" (1993, 105 Photographs), "Archives de Nuit" (1993, 60 Photographs) und „Helmut Newton‘s Illustrated No 1 – No 4 " (1999, 134 Photographs). The publica-tions were based on English-language contracts, where the application of German law was agreed. It is said, for example, in the contract concerning the book "From the photographic work":
1. The Proprietor hereby grants to the Publisher the exclusive license to publish and sell in volume form, throughout the world, the catalogue of Helmut New-ton´s Hamburg exhibition entitled
HELMUT NEWTON – FROM THE PHOTOGRAPHIC WORK
(hereinafter called the said work) subject to the terms and conditions set forth hereunder. The Proprietor warrants that he is fully entitled to dispose of the rights licensed to the Publisher under the terms of this agreement.
…
9. All rights not specifically licensed under the terms of this agreement are re-served by the Proprietor.
1
2
– 3 –
The defendant published 1999 limited edition of 10.000 hand-signed copies of the large format book "Sumo" with photographs by Helmut Newton. After the death of the photographer (2004) brought the defendant in September 2009 a reduced special edition of the sumo belt out, at issue in this litigation. Of the contained almost 400 Photographs are 73 identical photographs, which are already included in the volumes published by the plaintiff. Specifically, out of a total 45 Pic-tures from the book "Private Property" 15 Photos, from 105 Pictures of the book "Helmut Newton – From the photographic work " 37 Photos, from 60 Pictures from "Archives de Nuit" 11 Photos and 134 Fotos aus „Helmut Newton‘s Il-lustrated No 1 – No 4 " 12 Photos were taken. More 35 in said 2009 published sumo band printed photos are not same as the photos published in the volumes of the plaintiff, but come from the same image series ("Photoshoots").
The plaintiff took the defendant to cease and desist. He sees the publication of the 2009 appeared reduced special issue of "Sumo" primarily a violation of his exclusive right to the publication and dissemination of the photos contained in book form, and secondarily a violation of rights, he is entitled to his view of the protected as compilations photo books. In the alternative, the applicant submits, the defendant imitate his performance in anti-competitive un-fair, him by way of disabling.
The applicant sought,
order the defendant, to refrain,
1. to have a book to reproduce and distribute / disseminate, which contains some or all of those photographs by artist Helmut Newton, the
a) pages 7, 37, 39, 51, 52/53, 55, 61, 63, 84, 163, 171, 177, 242, 245, 258;
b) and sides 36, 43, 49, 159, 176 and 402;
3
4
– 4 –
the book named "Helmut Newton Sumo Special Edition 2009" (s. Anlage OUT 3 from the process Cologne LG Az. 33 The 349/09), ISBN-Nr. 9783836517300) were printed;
2. to have a book to reproduce and distribute / disseminate, which contains some or all of those photographs by artist Helmut Newton, the
a) pages 9, 17, 45, 46, 64, 69, 84, 87, 118, 119, 146, 147, 149, 150, 165, 167, 171, 186, 194, 197, 203, 229 (und Cover), 230, 231, 243, 245, 252, 267, 271, 272, 284, 309, 331, 351, 365, 369, 371;
b) and sides 27, 39, 62, 89, 151, 180, 199, 213, 217, 273, 303;
the book named "Helmut Newton Sumo Special Edition 2009" (s. Anlage OUT 3, ISBN-Nr. 9783836517300) were printed;
3. to have a book to reproduce and distribute / disseminate, containing more than 10 Photographs by artist Helmut Newton of the total number of 14 Contains photographs, the
a) pages 188 links, 188 right, 189 links, 189 right, 272, 365, 367, 368, 369, 370, 406;
b) and sides 273, 372, 373;
the book named "Helmut Newton Sumo Special Edition 2009" (s. Anlage OUT 3, ISBN-Nr. 9783836517300) were printed;
4. to have a book to reproduce and distribute / disseminate, containing more than 10 Photographs by artist Helmut Newton of the total number of 32 Contains photographs, the
a) pages 12/13, 79, 119, 170, 191, 214, 286, 396, 408, 438/439, 441, 444/445;
b) and sides 137, 159, 200, 250, 253, 273, 274, 287, 288, 289, 300, 301, 303, 318, 378, 379, 425, 436, 449, 450;
the book named "Helmut Newton Sumo Special Edition 2009" (s. Anlage OUT 3, ISBN-Nr. 9783836517300) were printed.
The plaintiff argued, that listed under point a of the applications with the images printed in the volumes of the applicant and the same images listed under point b of applications paintings were included in a similar form in the special edition of the book "Sumo" the defendant's.
The plaintiff also contended on appeal in the alternative,,
order the defendant, to refrain, to have a book to publish and distribute / disseminate, containing all those photographs by artist Helmut Newton, in the main application under No.. 1 to 4 each under BUCHST. a and b are denoted.
The defendant opposed the application. It considers, the applicant is not the owner exclusive rights to the individual in their books
5
6
7
– 5 –
published photographs. She should have most of the rights to collective works. These were not injured.
The district court dismissed the action. The appeal lodged loading rufung the plaintiff is unsuccessful. With the Court of Appeal delivered-tempered revision of the plaintiff pursued his complaint further requests. The defendant, dismissal of the appeal.
Reasons:
A. The court accepted, stood neither the plaintiff nor claims copyright omission of such unfair competition law to. To this end it has executed:
The main applications of the 1 to 4 relied primarily exclusive rights to the photo books printed in the individual photographs stood not to the plaintiff. Although the photographs are protected as light-framed and with the consent of the author have been included in the as-Sam melwerke copyright protected independently selection volumes of the plaintiff. But the circumstances invoked by the applicant did not justify the assumption, the author at the same time have given him extensive ex-cluding rights also on the individual photographs. The wording of the agreement between the plaintiff and Helmut Newton agreements speak against the granting of exclusive rights to the individual photographs. The objective purpose of the agreements and the interests of the Parties senlage would not require granting of exclusive rights to use the individual photographs in book form. Even the post-contractual conduct of the parties does not unequivocally for a one-eviction exclusive rights to use the individual photographs speak relevant aspects could be taken. Since there sufficient indications to score for an interpretation of the contracts in the sense of exclusivity-
8
9
10
– 6 –
lacked the right of the plaintiff to the individual disputed photographs and also for relevant subsequent agreements between the parties, that the decision of the District Court, the Managing Director of the plaintiff is not in accordance with § 448 Be heard as a party ZPO, not have been procedural errors contrary to the applicant '.
Instigated by the phrase "or any" alternatives of the main applications and the alternative claim are unfounded. The applicant could with the extent asserted his rights to the collective works Ver evaluation of a total of 108 Not bind at photographs of the Sumo special edition. While fulfilling the four photo art books of the plaintiff unquestionably the protection prerequisites to a collective work pursuant to § 4 Abs. 1 Copyright Act. But a violation of these rights only come into consideration, if the alleged infringing work contained as those structures of selection and arrangement of the sub-stance, the collection of works and contributions as a personal intellectual creation within the meaning of § 4 Auswiesen Copyright Act. For the creative power of the author of an anthology, it came to the selection or arrangement of the elements, so that the acquisition of essential parts of an older plant may also consist of a could-hurt-exclusive right to use the Collection, if the elements in the new work appeared in a different arrangement. However, it lacks of a takeover of the arrangement, this was a significantly higher number of taken over my with individual elements required. This materiality threshold was not reached in the dispute case. When considering the total were 35 not identical between, to have originated only from the same series of photographs photographs disregarded. Moreover, in addition to the relatively small number of acquired photographs be taken into account, that the Sumo special edition – as was the original of the sumo belt – a self-selected photographers Newton representative section of his entire photo artistic creation have to offer. Are in this context
11
– 7 –
but the Sumo volumes followed, in contrast to the photo published on the plaintiff-art associations to any particular topic.
As far as the action alternative, an unfair imitation in accordance with § 4 No.. 9 UWG was based, they also had no success. The in so far claimed by the plaintiff viewpoint of disability put special circum-stances require, which are not given in case of dispute.
B. The revision of the plaintiff does not succeed.
I. However, the appeal will be unrestricted. The appellate court has approved the revision in the operative part of its judgment without restrictions. A limitation of the authorization also does not result from the fact, that the Court of Appeals stated in its decision the reasons, the revision should be accepted in view of the high court still largely un-clarified issues of copyright protection of compilations. Although a limitation of the leave to appeal from the decision and reasons can result. However, it must be done unambiguously. Is the Court of Appeal there – as in the case of dispute – the only reason for the admission of the revision of, can not be assumed to be limited to only-principle approval of the appeal (vgl. BGH, Judgment of 31. More 2012 – I ZR 45/11, Wheat 2012, 949 Rn. 16 = WRP 2012, 1086 – Abusive tion penalty, mwN).
II. The Court of Appeal accepted without legal error, that the applicants have no claim for injunctive relief under § 97 Abs. 1, § 16 Abs. 1, § 17 Abs. 1, § 31 Abs. 1 and 3 Copyright Act for breach of copyright the exclusive right to use the-union individual acquired photographs entitled.
1. The Court of Appeal is assumed, that the plaintiff be-led circumstances did not justify the assumption, that Helmut Newton is the author of the disputed here as photographic works within the meaning of § 2 Abs. 1 No.. 5
12
13
14
15
16
– 8 –
Copyright Act protected photographs have granted him exclusive rights to use appropriate. Neither the wording of the agreement between the plaintiff and Helmut Newton agreements nor the purpose of the contract and the interests justifying the acceptance of the grant of exclusive rights to use union for the reproduction and dissemination of the photograph works in book form. Even the post-contractual behavior of the con-tracting parties could be no evidence of such a comprehensive grant of rights corresponding assumed. Against this assessment, the revision shall apply without success.
2. The interpretation of individual agreements is in principle a matter for the trial court. The interpretation of which is subject only to a limited audit-onsrechtlichen review it, whether legal principles of interpretation, Laws of thought or experience sets are injured or whether the interpretation is based on procedure errors, about because fundamental design material has been left in infringement of procedural rules in mind (BGH, Judgment of 7. February 2002 – I ZR 304/99, References omitted 150, 32, 37 – Unikatrahmen; Judgment of 10. October 2002 – I ZR 193/00, Wheat 2003, 173, 175 = WRP 2003, 83 – Movie analysis required; Judgment of 21. January 2010 – I ZR 176/07, Wheat 2010, 418 Rn. 12 = WRP 2010, 539 – VEXXER; Judgment of 22. April 2010 – I ZR 197/07, Wheat 2010, 1093 Rn. 15 = WRP 2010, 1523 – Concierto de Aranjuez; Judgment of 17. March 2011 – I ZR 93/09, Wheat 2011, 403 Rn. 17 = WRP 2011, 1302 – KD). Such errors of law are not running under-the Court of Appeal.
a) In the design in the first place is the wording chosen by the parties and the wording to be taken objectively stated intention of the parties to consider (References omitted 150, 32, 37 – Unikatrahmen; BGH, Wheat 2011, 403 Rn. 18 – KD). This also is the Court of Appeal correctly held. It has – the extent of the revision unopposed – accepted, that the agreements between Helmut Newton and the plaintiff, the rights of the-
17
18
– 9 –
grant for the four photo books of the plaintiff is based on, No express or are given a coherent granting of rights also to individual photographs. In contrast, the revision used in vain.
aa) Mistaken when he asserted the revision, the Court of Appeal had assumed an incorrect legal standard, by requiring an apparent outward statement of a finding of not expressly stated intent of the parties and thus ignored, that contracts for the granting of rights generally were free form and not have to be announced to a third party in any way. Contrary to the opinion of the audit shall review the appeal court as the basis of its not such a statement requirement. It has rather – in accordance with the case law of the Senate – accepted, that after the transfer thoughts purpose of the grant in excess of the contractual purpose usage rights can only be assumed, if such a party is will come at least in the areas gleitumständen and the coherent behavior of the parties unambiguously expressed (vgl. BGH, Judgment of 28. October 2010 – I ZR 18/09, Wheat 2011, 714 Rn. 20 = WRP 2011, 913 – The Frog with the Mask, mwN).
bb) Revision Rugt, the Court of Appeal considered, in contradictory ways one hand, it, that the contracting parties had been particularly important to the wording of the contracts, while on the other hand have given, that the contracts do not even expressly rights to a collective work is the speech. Under these circumstances, it appears not only inconsistent, but also arbitrary, classify the text as a custom-bend. Thus, the revision does not penetrate.
(1) The Court of Appeals – the extent of the revision is not bean-standet – performed, the parties had already from the general-
19
20
21
– 10 –
tion rights principles following transfer function thereby additionally emphasizes thoughts, that they had three of the four relevant here con-tracts all rights not specifically mentioned in the text expressly reserved to the author. In this context, it has been accepted, of the Contracting hereafter particularly important texts of the Treaties, to which the applicant was familiar with licensing agreements influence can also copy and it must be concluded by the first, do not speak for, but ge-tions an exclusive right granted to the individual photographs. While in the contracts is not expressly rights to a collective work („collective work“) Reason; but it certainly lacks any indication, that the author of the plaintiff, alongside an exclusive license for that work with its special selection and arrangement of photographs and ac-companying texts also have exclusive rights in relation to any other exploitation of the photographs in question will give. On the contrary, the text of all contracts still refers only to the each band in a book to be published oeuvre.
These assumptions are not contradictory and can otherwise detect no error of law in. Extent that the appeal argues, under the premise, that the parties had been important to the wording of the contracts, it is inexplicable, that the contracting parties have not explicitly mentioned the rights to a collective work, , it states that no error of law, but merely replaced the tatrichterliche Findings of their own deviating.
(2) Without success, the revision shall apply also to the adoption of the Appellate Court, it lies far, by the Parties in the singular terms used "work", "Catalog" and "book" or the phrase "maga-zines … to relate in one volume "at the same time without additional information on all individual photographs contained in the book volumes. The revision is wrong to claim, the Court of Appeal did here the argument of the plaintiff
22
23
– 11 –
ignored, that had been granted in the treaties on individual photographs genetic relatedness ancillary rights, without the parties had so far chosen a different formulation.
The Court of Appeals has not addressed this lecture, but to the extent expressly made to the reasoning of the district court as its own. Of this has made, that the content of a granted right side can not be closed on the periphery of the main law, as ancillary rights may be granted in addition to the main law with a broader content. This reveals no error of law.
(3) Contrary to the view of the appeal it has not held the Court of Appeal in the context of contract interpretation necessary, that Helmut Newton wanted to give the plaintiff exclusive rights in relation to any other recovery of the affected photographic works. The Berufungsur part is clear from, that the Court of Appeal has considered applicable only in the interpretation Vertragsaus-, whether the plaintiff a right to exclusive use of the light-ing images were given in book form.
(4) The Court of Appeal has dealt with the applicant's argument, the granting of exclusive rights to use the individual photographs put no express designation of each Fo-tos ahead, but could also be in the form of a global grant exclusive rights to the asset-acting determinable by inclusion in the Buchausga-be photographs made. It has performed, that it was easy for the Parties also and especially in such a case, re-weighing, the rights granted in the appropriate language (Plural-)To bring significant form EXEMPLARY expressed. But actually only mention a single contract (zu "Private Property") the photographs contained in the band selection in conjunction with the granting of rights, although only in the number of („with 45 photographs“). However, was not so far expressed
24
25
26
– 12 –
been, that the granting of exclusive rights not only work with a specific 45 Should include photographs, but the whole work and additionally the individual photographs. The rights of title clause under point 8 this contract have expressly provided even a limitation of the license to the publication of the said plant in a band. These designs are also errors of law.
The revision keeps the vain against, it was nearby, the individual light images, which were determined for each anthology, not separately identify; any case, the designation was not an indication of am-bivalent. Where the Treaty on the book "Private Property" contained the express limitation of the license even confirm the claim of the plaintiff's, because such a restriction on the granting of rights is logically only useful, if a different use is possible, particularly as regards the individual photographs, which make up the collective work. So that the parties had concluded a settlement in one of the contracts, to confirm the argument of the plaintiff in full. This is also for the fur-ther three contracts of significance indizieller.
By that argument, the revision shall not constitute an error of law of the Appellate Court, but tried again in revision legally improper way, Findings of the tatrichterliche their own differing to replace.
(5) The appellate court also took into account in its interpretation, that the two recent contracts in relation to the works "Archives de Nuit" and "Helmut Newton's Illustrated No. 1 – No. 4 "include a clause, according to which may be published during the contract period does not exceed ten photographs contained in the various works without permission of the plaintiff in other editions book. It has performed, have the district court therein appreciation of text and recognizable meaning right not to Rückli-
27
28
29
– 13 –
seen on the license of the exclusive rights to all photographs Availability checked-ing plaintiff in favor of the photographer, but an additional obligation assumed by the author to the publisher. Of the case if it were a competition protection clause, the no rem action against anyone seen zukomme. Against this background lies an effective granting of exclusive exploitation rights of the plaintiff's individual photographs of all the print edition, but certainly far; because – as the Court of Appeal – would such is, it would not have needed the only mandatory action clause.
– 14 –
Against this assessment, the revision applies to the argument, the very fact, that the clause zukomme no in rem action against each Dermann, confirm the position of the plaintiff. Acknowledged, by the Treaty are exclusive rights to use individual photographs of the applicant, Whether they are in the clause in question to have a debt-acting legally concession in favor of Helmut Newton, to be able to use a certain number of other photographs for book editions. By that argument, the revision shall not constitute an error of law in turn the appellate court, but the agreement only rated differently. So that the plaintiff can not succeed in the appeal instance.
b) The Court of Appeal is also believed rechtsfeh operating perfectly thereof in the interpretation of the contract, that required the contract documents and the other documents in the case to be removed objective purpose of the agreements made between the plaintiff and Helmut Newton, also taking into account the interest position of both parties and the other circumstances of any granting of exclusive rights to use the individual photographs in book form.
aa) Missing – as in the case of dispute – an express provision to the extent of the contractual rights granted by the copyright, purpose of the contract is, to pursue the parties after the entire contract to comply, and assumed thereafter by the presumed needs of the contracting parties and to ask, whether and if so to what extent the granting of rights to achieve the purpose of the contract is re-quired. Because after the transfer thoughts purpose of § 31 Abs. 5 Copyright Act grants the copyright rights in doubt only to the extent a, the purpose of the contract necessarily requires. In this interpretation rule is expressed, that the copyright powers tend, as much as possible to remain with the author, so that this is involved in the Erträgnis-sen of his work in an appropriate manner. This means, that
30
31
32
– 15 –
generally only those rights are granted by implication, which are essential for the achievement of the purpose. In contrast, the granting of which goes beyond the purpose of the contract rights of use can only be assumed, if such a party will – and it was only because of the circumstances and of the coherent behavior of the parties – has been unequivocally expressed (BGH, Judgment of 22. April 2004 – I ZR 174/01, Wheat 2004, 938 f. = WRP 2004, 1497 – Comic Translation III; BGH, Wheat 2011, 714 Rn. 20 – The Frog with the Mask, mwN). In addition to the relevance of the purpose of the principle of equitable interest through contractual interpretation applies to both sides (References omitted 150, 32, 39 – Unikatrahmen; BGH, Wheat 2010, 1093 Rn. 20 – Concierto de Aranjuez).
bb) From these principles, the Court of Appeal is also as-sumed and adopted, agreed for book publications by the plaintiff was sufficient, the granting of rights to use simple in terms of individual photographs. The plaintiff had his conception, that the contractual exclusivity of the collection works without simultaneous ge granting of exclusive (Book)Exploitation rights to the photographs used for this individual would have been economically worthless, not reasonably explain. Even after the applicant's arguments were the disputed four books published each independent, dominated by the topic and the nature of the compilation of photographic works from the extensive oeuvre of Helmut Newton's works. A straight on this character at knüpfende-exclusive exploitation remain but – as the Court of Appeal – possible and not lose very fact their economic value, that individual photographs, their prior publication (particular) in magazines and their continuing applicability outside the book isolated form (in peri-odic pressure works, on posters, Art prints or postcards) the plaintiff expressly acknowledged, could be taken by third parties, together with other works by the same photographer in thematically and structurally different design selection Associations.
33
– 16 –
cc) This evaluation does not reveal any error of law.
(1) Without success means the revision, a simple right of use was insufficient for the plaintiff, because the contracts were created in duration to the duration of copyright and such a long-term contractual cooperation presupposes, that no comparable collection stations would avail-able. The plaintiff had adduced, that since the appearance of the defendant offending work in 2009 sales of the twelve months since the publication of books available through the applicant by about. 30% has decreased compared to the previous twelve months. This shows, that, contrary to the court of appeal-ing the exclusive exploitation rights to the book used photographs to achieve the scale of copyright on the purpose of the contract were indispensable.
Thus, the revision does not penetrate. It does not explain, that be hauptete decline has led to, that the plaintiff in an economically relevant here auskömmliche recovery of photo books was no longer possible and the sales of his books since 2009 only losses have been brought. She also does not allege, the alleged decline in sales was solely on the appearance of the disputed work of the defendant to perform back-, because other factors were ruled out as contributory causes.
(2) After the revision believes it is contrary to the view of the loading rufungsgerichts not matter in dispute, that individual light images could be used in another context in selection volumes using. If, however, would be "en masse" photographs taken and published in another anthology, which could be perceived by the public as a kind of "best of" collection of recent works, the original purpose of a permanent contract evaluation by keeping available the anthologies let not reach economically.
34
35
36
37
– 17 –
Also shows that the revision of the appeal court did not err in interpreting the agreements on. As stated, it has not been shown, that the mere adoption of an exclusive right to use the photo during enables an economically auskömmliche recovery in book form.
(3) Without success, the revision also applies to the assessment of the interests of Helmut Newton by the Court of Appeal.
This has taken, there was no apparent, why at the time of contracting already famous photographer the plaintiff would have the exclusive right to grant, except for the contrac-genständlichen book editions at the discretion of the applicant to use his photographic works also for different compilations put together in book form. It was doubtful, whether the disputed law and advised on three of four contracts represented by his agent, in respect of all selected photographs for a book project I really want to bind a single book publisher, especially if this is done and a permanent relapse of rights as well as the circulation ultimately depended on the business decision of the publisher. Such a substantial commitment to the Buchveröffentli-tions of a single publisher appears difficult to reconcile with the choice of the author and its widest possible participation in the economic exploitation of its processing plants. These tatrichterliche appreciation of the court will be free from defects. The beet-tions raised against the revision are unsuccessful.
Contrary to the view of the appeal the appellate court's assess-ment has not set based on the premise, that the plaintiffs claim the right to be, to use the photographic works contained in the four collective works for different compilations put together in book form. The Court of Appeal has the rather rightly – authoritative in case of dispute – Not-
38
39
40
41
– 18 –
into account interest of the copyright owner for the granting of rights to other Verla-ge.
Unsuccessful, the revision shall apply also to the reasoning of the Court of Appeals, there was no apparent, why Helmut Newton himself against the plaintiff of the rights to the book evaluation of known photos "come, naked "would go to, when he at the same time on the com-mon book publication of this artistic photos with a so di-rectly related other photos from a series ("They come, dressed“) had waived. Thus, the Court of Appeals correctly described by him as the recognized interest retardant effect of the asserted state-ments made by the plaintiff interpretation. The revision admits, that repre-sented by their interpretation of the contract would lead to the result, that a later artistic juxtaposition of first pub-lished in book form only known photographs would not be possible.
(4) The appellate court also complement it off, that the copyright notices in the Contacts photobooks the plaintiff only "for this issue" or "this edition", Helmut Newton contrast to the other rights, auswiesen especially on "photographs" as proprietor. Contrary to the view of the revision can these markings, contain no reference to the applicant's rights of individual photographs, quite get meaningfulness in terms of complementary indiziellen importance for the interpretation of the contract represented by the Appeal Court.
(5) Not cross the complaint of the revision, the Court of Appeal had in its opinion based on the comparability of interests – in particular, the evaluation required the plaintiff – must include the consideration, whether the rules of the publishing laws be applied by analogy or at least in the context of contract interpretation to the contracts concluded. The Court of Appeal has thoroughly examined this question-
42
43
44
– 19 –
set and the remainder to the statements of the district court regarding genome-men. Are that it undermined him right error, does not explain the revision. Insofar as it considers, in case of dispute, the situation is comparable to those of-, to a publishing contract underlies, evaluates the interests of the parties to audit only legally improper way other than the Court of Appeal.
c) The Court of Appeal err in law free account also the post-contractual conduct of the parties in its interpretation of the contract.
aa) In the interpretation of contracts and the subsequent conduct of the parties may be taken into account. While this may not affect the objec-tive of the contract, but have significance for the determination of the true will and a proper understanding of the Parties (BGH, Wheat 2010, 1093 Rn. 19 – Concierto de Aranjuez, mwN).
bb) The court accepted, the district court did refer to the subsequent conduct of the parties to any legal unequivocally speaking for granting of exclusive rights to use the various aspects photographs. In contrast, the revision shall apply without success.
(1) Taken by the Court of Appeal regarding district court judgment of stated, the lawsuit lecture, which Helmut Newton himself in a phone call late July 1999 acknowledged, Photos that are taken from books of the plaintiff for the Sumo Book, do not speak for the interpretation of the plaintiff. As is clear from the phone note of the plaintiff, Newton himself had known not guilty, ever to have the collection of photos AUTHORIZING tet, but expressed, it was his fault, that in the sumo book more images are included as covered by a contract with the plaintiff. Something about-
45
46
47
48
– 20 –
fuller also not clear from the between the plaintiff and Newton in 1999 closed "Main Agreement". The Court of Appeal has held additional, The negotiations ended in a compromise of the plaintiff with Helmut Newton on the power, To leave a greater number of his recorded in the disputed book editions of photographs in a second time the defendant for the Sumo project, speak to her whole course – regardless, from whom the initiative was as-sumed – less for the assertion of exclusive rights of the plaintiff as to the discussion of debt claims between two parties, come as the basis for a competition protection clause in the two recent contracts and secondly, the gen-eral principle of good faith in consideration.
That assessment brings the revision before any drastic beet conditions. It is rather well so far in their own assessment un-lawfully in the place of the trial judge made the differ-assessment of agreements, by it claims, the agreements made between the plaintiff and Newton put the "logically" forward, that the plaintiff exclusive rights have been transferred to the individual photographs for use in book form in rem action. The revision takes into account the particular not sufficiently carried out by the appellate court and you do not specifically contested adoption, Expiry and the result of collusion with Newton were influenced by the marked by mutual respect of the negotiation situation and possibly speaking for the plaintiff competition protection agreement.
(2) The Court of Appeal also adopted additional, that any agreements between Helmut Newton and the plaintiff in connection with the question, whether the images for the contract selection Newton Sumo band the defendant- was in bad faith or against the applicant, alone would have the existing between the plaintiff and Newton contractual-
49
50
– 21 –
hit ratio. Their lack of effective exclusivity right over these agreements had no effect on the right of the defendant to use the photographs. It corresponds to the, that took place between the plaintiff and the defendant prior to the release of "Sumo" no direct negotiations and the defendant had made any royalty payments to the plaintiff. There could also be no question of there-, that in October 1999 absence of the defendants that have been made "Main Agreement" would have created between Newton and the new and future plaintiffs to be observed by the defendant acting in rem sole rights of the plaintiff in these photographs. The same gel-te for the willingness of the defendant, take a comparatively small print in Newton's explanation of the imprint "Sumo" among the co-pyright-notes with their name and the name of the artist, in this is the Managing Director of the plaintiff for permission to reprint from 107 Photographs from previous productions have thanked. The revision applies a judgment against this tatrichterliche, the absence of direct agreements between the parties to the dispute does not allow any conclusions to be, and thanksgiving Newton derives only makes sense, when going so far assumed an exclusive privilege of the plaintiff. So that they in turn shall not constitute an error of law of the Court of Appeals, rated but the circumstances just different. It is not even remotely, to understand the apparent influenced by a trusting personal relationship of correspondence between the applicant and Helmut Newton then, that Newton was committed to only the internal relationship to the consideration of the interests of the applicant.
(3) The Court of Appeal has also recognized the fact, that in 2000 shortly before the opening of the exhibition "Helmut Newton Works" in Berlin, a tripartite agreement between the plaintiff, the defendant and Newton-ge was affected, which the plaintiff by the defendant 80.000 DM as a blanket license payment for the mapping of 46 Received photographs, were included in the exhibition catalog, published by the defendant. It has also
51
– 22 –
considered, that the defendant has so far expected to legal risks in the trading book edition of the catalog. The Court of Appeal has not taken the, that the defendant has thus pleaded in this legal dispute exclusive rights of the plaintiff for the future binding recognized. Rather, it is assumed, that the defendant wanted to clear up by paying a not insignificant amount compared these legal risks and avoid their business reputation and their relationship to the organizer of the exhibition stressful scandal. Against this judgment, the court did-revision applies a vain, the fact, that the defendant had paid royalties, Helmut Newton had also signed the Agreement and the payment in the internal relationship to Newton al-lein the applicant was entitled to, could only be understood as, that Newton had contracts with the plaintiff understood in terms of a grant of exclusive rights for book publications of the photographs in question. An error of law in the Court of Appeal is not indicated because with-, because the different appreciation of the court no statutory interpretation principles, Laws of thought or experience sets disregards and is not based on procedural errors.
Contrary to the submission of the revision, the appellate court also expressly acknowledged the request of the defendant with respect to the Sumo special edition and executed to, from the corresponding negotiations leave for an acquisition of exclusive rights of the plaintiff to the individual photographs derive nothing decisive. Against this assessment, the auditors raised no specific objections.
d) The Court of Appeal has considered as another rather than against a comprehensive grant of rights to individual photos speaking indication, it was agreed between the plaintiff and Helmut Newton, that the author over-sheeting after production of the book to the applicant to
52
53
– 23 –
Reproductions of the photographic material were returned. Against this assessment, the revision does not apply.
and) Unsuccessfully challenges the revision, the Court of Appeal had the managing director of the plaintiff pursuant to § 448 Code of Civil Procedure shall hear the evidence of the correctness of the plaintiff's speech as party, An exclusive-use rights to the eviction of the individual photographs for books is the common understanding of the representative of the plaintiff and Helmut Newton ge-finance, so that the contractual terms were also related to the individual photographs, Helmut Newton have the exclusive rights granted and the exceptions were included in his interest.
The Court of Appeal has so far performed, according to the interpretation of results were found sufficient factual indications that an interpretation of the publishing contracts or future agreements between the parties in the sense of an exclusive right by the applicant to individual photographs not apparent. There could therefore be no question of, that the district court of its discretion under § 448 ZPO process error of not availed itself of this or had exercised improper. The applicant was on the subjective view of its manager tive beyond concrete facts, to he de-ing information could have, not comprehensively explained. This shows no error of law. The Court of Appeal has its particular pursuant to § 448 Exercised discretion and existing Code of Civil Procedure applicable consideration is given to the outcome of negotiations. The revision also does not allege, the Court of Appeal had interviews with the manager of the applicant in accordance with § 448 Code of Civil Procedure or the personal interview pursuant to § 141 Code of Civil Procedure must arrange for reasons of procedural equality of arms, because it had gone to a run-to-face conversation (vgl. BGH, Judgment of 16. July 1998 – I ZR 32/96, Wheat 1999, 367, 368 f. = WRP 1999, 208 – Vieraugenge conversation).
54
55
– 24 –
III. Also err in law in the Court of Appeal which is as-sumed, that the applicants have no claim for injunctive relief under § 97 Abs. 1, § 4 Abs. 1, § 16 Abs. 1, § 17 Abs. 1, § 31 Abs. 1, Abs. 3 Copyright Act is entitled for breach of the rights to the four editions of books in terms of protection as a collective work.
56
– 25 –
1. In determining the scope of a collecting station is to be noted, that the protection under § 4 Abs. 1 Copyright Act is in-between eigenschöpferi selection or arrangement of the elements (Obergfell in Buescher / Ditt-mer / Schiwy, Intellectual Property Copyright Media Law, 2. Ed, § 4 UrhG Rn. 5). An infringement of copyright in a collective work can therefore only be accepted, if the damaged work contains those structures in terms of selection and arrangement of the substance, which the collective work as a personal intellectual creation within the meaning of § 4 Identify Copyright Act. Only if the combination of elements has acquired spe-cial structures in their selection and arrangement, and recognize in the fabric of the personal intellectual creation of the collective work can, can impair the copyright in the collective work within the meaning of § 4 Copyright Act are adopted (BGH, Judgment of 21. November 1991 I ZR 190/89, References omitted 116, 136, 142 f. – Guidelines; Judgment of 24. More 2007 I ZR 130/04, References omitted 172, 268 Rn. 25 – Poem Title List I). As a result, that the part taken over must be an expression of individual selection of the author's conception of the collective work as largely, that he is still under a § 4 Copyright Act is independently protectable part of his anthology (References omitted 172, 268 Rn. 25 f. – Poem Title List I; Czychowski in Fromm / Nord-mann, Copyright, 10. Ed, § 4 UrhG Rn. 40).
2. From these principles, the Court of Appeal is also assumed. It has – Referring to the judgment of the Landgericht – accepted, it could be left, whether the number of acquired photographs representing each of a substantial part of the book of the plaintiff; in any case was not argued or otherwise identified, that the defendant had assumed a structure created by the plaintiff with respect to image selection in terms of photographs taken from Menen. The court also stated, it was considered, that the Sumo special edition – as was the original of "Sumo" – should have a representative selected by Helmut Newton himself of his entire photo cutout artistic creation offer, in
57
58
– 26 –
this framework, any particular subject but was followed, as they have appeared to the plaintiff photo art books each underlain. The loading rufungsgericht thus can not determine, that the commitments in the Sumo special edition photographs are indicative of the special structure of individual choice conception of the books of the plaintiff in their selection or in their arrangement or otherwise reveal the fabric of personal intellectual creation of the Collective Work. In contrast, the amendment will bring no complaint. It makes no particular claims, The appeal court had ignored argument of the plaintiff, in which the adoption of eigenschöp ferischen-selection structure of the plaintiff had been specifically proven.
3. In the absence of an acquisition of the necessary individual selection conception of the plaintiff, it depends on the revision of the complaints levied against the further-ing of the court assumption no longer, the number of acquired photographs do not reach the Wesentlichkeitsschwel le-, which must be exceeded, when – as in the case of dispute – not the arrangement, but the selection of parts of the elements of the collective work that is in issue.
IV. Without success, the revision eventually turns against the adoption of the Appellate Court, the appellant is also the plea made antitrust injunctive relief pursuant to § § 3, 4 No.. 9 UWG not.
1. The Court of Appeals is considered with reference to the district court judgment which, that the application of § 4 No.. 9 UWG come un-ter the aspect of disability cited by the plaintiff alone only very excep-tionally considered. The necessary special circumstances de, which could establish here despite copyright permitted distribution of the attacked Fo tokunstbuches that goes beyond the normal competition situation of the parties except the targeted disability, are neither
59
60
61
– 27 –
demonstrated yet seen. This judgment leaves no error of law recognize.
2. Unopposed by the auditors, both the District Court and the Court of Appeal which are assumed, that the plaintiff hilfswei-se solely on § 4 No.. 9 UWG has supported the viewpoint of unfair disability.
a) A disability may also under § 4 No.. 9 UWG be included in the competitive assessment, because the list of groups in case this provision is not exhaustive. If, however, – as in the case of dispute – none of the cases of § 4 No.. 9 BUCHST. aa c UWG forms, can basically overlooking the freedom to copy existing only in exceptional cases, to imitate a foreign product be regarded as anti-competitive. For the adoption of an anti-competitive handicap is therefore needed special circumstances, allow the presumption, that the claimant is disabled anticompetitive in its effort, rechtzuerhalten on-the appreciation of and the exclusivity of its products and thus their market opportunity, or otherwise is taken to the Creator of the original by offering the possibility of imitation, to market its product in a reasonable time (vgl. BGH, Judgment of 11. January 2007 – I ZR 198/04, Wheat 2007, 795 Rn. 51 – Handbags; Judgment of 26. June 2008 – I ZR 170/05, Wheat 2008, 1115 Rn. 32 = WRP 2008, 1510 – ICON; Köhler in Köhler / Bornkamm, UWG, 31. Ed, § 4 Rn. 9.64).
b) Circumstances, that would suggest such a disability of the claimant, can not see the facts found by the Court of Appeal. The revision does not allege, that the arguments to the plaintiff would not have been considered, and shall otherwise does not constitute an error of law the Court of Appeal.
62
63
64
– 28 –
aa) Soweit Revision meint, the dispute was considered, that the defendant knew of the contractual relationship between the plaintiff and Helmut Newton and his heirs they thus have led to an offer to surrender the disputed work to a breach of contract against the plaintiff, it is based on circumstances, which were not the subject of the judge of fact assessment. Nor has it thereby represents, that the appellate court would have passed over the corresponding argument of the plaintiff.
bb) In vain does the revision also argued, a disability lies at least in, that the defendant was not content to, from a single collection work of the plaintiff a number of photographs to be taken from, but that it consists of four currently available compilations between each more than 20% and more than 40% the photographs have taken. This put together with the point of view to breach a disability represent-ing unfair. Out the systematic approach of the defendant ha-be to the decline in sales of the four collected works, would have the effect of, that the plaintiff either the analysis of the collective work must continue despite the lack of profitability or return it to one of the rights com-me, if the plaintiff would be forced, adjusting the analysis.
Even so, the audit demonstrated no error of law of the Court of Appeals. As stated, the plaintiff has not demonstrated, that be hauptete decline has led to, that it was no longer an economically from conventional-utilization of relevant here photobooks possible. The revision also not given enough, that the appellate court is just not understood by the substitutability of the collective works of the plaintiff and the challenged Sumo edition, but a thematically and structurally different conception has found. Here Against the Re-vision no serious complaints raised.
65
66
67
68
– 29 –
cc) After the above, it can be left, whether a claim under § 4 No.. 9 Therefore been eliminated UWG, because the plaintiff – how does the Revisionserwi-ment contends – has explained neither a competitive characteristic of his books, nor the existence of an imitation.
– 30 –
In. The decision on costs is based on § 97 Abs. 1 Code of Civil Procedure.
Bornkamm Buescher Schaffert
Kirchhoff Loeffler
Courts:
LG Köln, Decision of 03.05.2011 – 33 The 127/10 –
OLG Köln, Decision of 21.12.2011 – 6 You 118/11 –