| Germany / Karlsruhe June 18, 2004
Federal High Court of Justice
Press Release No. 72/2004
Federal High Court of Justice Strengthens
Rights of Translators
- Federal High Court Rules on Dispute between
Piper Publishing House and Translator Karin Krieger –
The German Federal High Court’s First
Division for Civil Matters – the body with jurisdiction
over matters related to copyright and right of publication
– ruled yesterday on the dispute between the translator
Karin Krieger and the Piper Verlag over the translations of
five books by the Italian author Alessandro Baricco, largely
affirming the judgement of the lower instance, which held
that the translator’s complaint was fully founded.
Between 1995 and 1998, the Piper Verlag concluded
several contracts with the experienced translator Karin Krieger,
obligating her to translate five works by Alessandro Baricco
from Italian into German. The contracts contained no explicit
stipulations as to whether the publishing house was obliged
to publish the plaintiff’s translations of the books
by Baricco. In keeping with common practise, remuneration
was agreed upon in the form of a per-page fee. All of the
contracts contained a stipulation according to which the translator
was to receive a (minor) share in the profit once a certain
number of editions had been reached. The royalty arrangement
was different in each case.
The first of the works – Seide – appeared in February
1997. It was unusually well-received, and the critics explicitly
lauded the plaintiff’s translation. By the end of the
same year, the seventh edition of Seide had been published.
When the plaintiff demanded a financial share
in this unusual success from the defendant publisher (the
copyright law contains a stipulation providing for a subsequent
adjustment of the remuneration in such cases), the publishing
company entered into negotiations with her, eventually leading
to an agreement on a (further) share in the success of Seide.
After the plaintiff’s renditions of two further Baricco
works had been published (Land aus Glas and Novecento), however,
the publisher informed the plaintiff of its withdrawal of
all of the works she had translated and its intention to have
them translated anew for all future editions. Moreover, the
two works Oceano Mare and Hegels Seele oder die Kühe
von Wisconsin, translated by the plaintiff but not yet published,
would also appear in new versions. In the case of the second
work, the publisher justified its action by citing shortcomings
in the plaintiff’s translation. Most of the works mentioned
subsequently appeared in renditions by other translators.
In the period that followed, negotiations were
conducted by the two parties but did not lead to a comprehensive
settlement. The question as to whether a partial agreement
had been reached on individual points was at issue in the
judicial proceedings.
Aside from indemnification and information
claims, the plaintiff asserted three demands with her law
suit: (1) That the defendant publisher cease publishing any
but the plaintiff’s translations of the five Alessandro
Baricco works without also supplying the versions translated
by the plaintiff. (2) That the plaintiff’s already published
translations of Seide, Land aus Glas and Novecento were to
continue to appear for as long as there was a demand for the
publication of these works. (3) That the two as yet unpublished
works were also to appear as translated by the plaintiff.
The Munich District Court I only partially allowed the complaint,
basing its ruling on the assumption of a partial agreement
between the parties with regard to Seide, as well as on the
fact that the publisher had failed to make sufficiently clear
that the newly translated edition of Novecento was no longer
the version by the plaintiff, and the fact that an excerpt
from the plaintiff’s translation of the work had been
printed on the book jacket of the new translation. The Munich
Higher Regional Court rejected the appeal filed by the publisher
against this ruling. This part of the dispute was no longer
an issue of the proceedings on appeal before the Federal High
Court of Justice. The Higher Regional Court held that the
plaintiff’s appeal was founded to the full extent.
In the ruling announced yesterday evening, the
Federal High Court of Justice essentially affirmed the Higher
Regional Court ruling on the appeal. According to the Federal
Court, no objection could be made to the fact that the court
of appeal had construed the translation contracts as publishing
contracts, i.e. as contracts imposing upon the publisher an
“Auswertungspflicht” (obligation of utilization,
in this case of the plaintiff’s translations). On the
one hand, the publisher’s interest in freedom from obligation
to use a translation which could have a lasting effect on
the success of the translated work cannot be contested. In
the case of contracts concerning the translation of literary
works, however, the translator has a substantial interest
in the publication of his/her translation. Under these circumstances
it cannot be assumed that, in case of doubt, such translation
contracts are so-called order contracts, which do not obligate
the publisher to utilize the translations. There are therefore
no grounds for contesting the Higher Regional Court’s
assumption that, in this case, the publisher was subject to
an obligation of utilization.
The Federal Court complied with the ruling on
the appeal in all but one point. Inasmuch as the Higher Regional
Court had ordered the defendant publishing company to supply
new editions of the plaintiff’s already published translations
for as long as there was a corresponding demand, the order
issued is not only too indefinite, but also lacks a legal
basis. According to the law of publication, in a case of doubt
the publisher is not obligated to supply a new edition. He
can, for example, change his publishing policies and return
the rights to the author, who may then award them to someone
else. In a case of doubt, the publisher must also retain this
right with regard to a translated work. A publisher may nevertheless
not use a different version for the new edition of a translated
work without good cause. In this context it is to be taken
into account that, if the rights are returned to the translator,
the latter may not utilize his/her translation independently
but only in conjunction with the original work.
Translated by Judith Rosenthal
German Federal High Court of Justice ruling
of June 17, 2004– I ZR 136/01
Karlsruhe, June 18, 2004
Press Office of the Federal High Court of Justice
76125 Karlsruhe
Tel. +49 721 159-5013
Fax +49 721 159-5501
(German source see: www.bundesgerichtshof.de) |
