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

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