Buy-out (media industry)

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The buyout (or buyout = "sale") of rights is understood to mean the sale of all rights to a work for a flat fee. All areas of media production are affected by such contracts, including in particular radio, television and film as well as the “ new media ” and advertising films. In addition, “buy-out contracts” are increasingly being used in the photo industry. The advantage of this for the users of photos is that long agreements on the use of copyright can be dispensed with. This is particularly important in the field of advertising and is therefore the industry standard for z. E.g. commercials and campaigns in which buyouts define the exact usage (e.g. location, number, format and period of the spot broadcast). Buyouts are a common term in the advertising industry, which in 2013 in the United Kingdom alone comprised an investment volume of £ 17.8 billion. Alternatively, the “buy-out” is also referred to as “usage fee”, “royalties” or “residual”. This is due to regional differences in understanding. While "buy-out" is a globally used term in the media industry, some countries have their own definition. What is understood as “buyout” in the professional media world is called “royalty” in Great Britain and “residual” or “usage fee” in the USA. The “buy-out” is understood internationally as an umbrella term for the remuneration of usage rights under different exclusive conditions, depending on the agreement. While "World-Wide-Buy-outs" are sometimes used, especially in the advertising industry, In the case of worldwide advertising campaigns, for example, it should be noted that these do not really exist, as the conditions or buy-out regulations and standards and the underlying value tables differ from country to country. According to the Screen Actors Guild (SAG) and the American Federation of Television and Radio Artists (AFTRA), two American unions for artists merged since 2012, the USA, Canada and Mexico (the NAFTA (North American Free Trade Agreement) - countries) the “buyout amount” according to the type and quantity of use. This remuneration, known as “residuals”, is based on the media plans, the number of broadcasts of the advertising spot and the exact medium, e.g. B. whether it is national, regional or cable television.

According to SAG-AFTRA, the fee for the rest of the world corresponds to 9 times the basic fee (the so-called "session fee") in order to obtain the corresponding rights. This 9-fold session fee for "the world" (excluding the USA, Canada and Mexico) is divided into a factor of 3 for the United Kingdom, 2 for Europe without the United Kingdom, 2 for Asia, Australia and New Zealand, 1 for Japan and 1 for the rest (Africa and Latin America). This distribution key is comparable to the German rule that is quite common, which suggests a 1: 3: 5: 7 distribution. For example: 1 = basic fee for Germany, buyout for the German-speaking EU (Germany, Austria and Switzerland) = 3 times the basic fee, 5 times the basic fee for Europe and 7 times the basic fee for the "whole" world.

description

In the case of a "buy out", the author transfers all rights he owns by means of a contract, and in return he receives generally reasonable remuneration. A distinction is made between real and fake “buy-out” contracts. The only difference is the remuneration. In the case of real buy-out contracts, a one-off amount of money is paid out to the author, while in the case of fake buy-out contracts, only a small initial amount is paid out. In addition to the basic remuneration, further repetition fees are incurred. It has to be taken into account that buyouts in the media industry do not necessarily transfer all of the author's rights. The transfer of rights can e.g. B. to a certain type of use and a certain scope - depending on the medium - be limited. A buy-out can only contain the license for a poster campaign, which can be limited according to the size of the print run, the time of use and the area of ​​distribution; however, this buyout would not include television viewing. However, there is also the 'exclusive buy-out', which regulates exclusive sales and can include the use of all rights.

Legal background and remuneration regulations

The problem with the “buy-out” of rights is the relationship to Section 31 (5) UrhG . Because with the “buy-out”, copyright dissociates itself from the “doctrine of transfer of purpose”, which is standardized in Section 31 (5) UrhG. According to this doctrine, only the rights of the author are assigned to a third party, which are necessary for the purpose of the contract. The idea of ​​“work made for hire” from Anglo-American law is therefore fundamentally alien to German copyright law. But in practice the “buy-out” has already become established. The whole thing does not seem unproblematic, but the “buy-out” has become indispensable in many industries. A possible disproportion between exchanged services can be objected to under contractual law, and in terms of copyright it appears problematic because of Section 31 (5) UrhG. However, these legal problems were defused with the introduction of Sections 32, 32a UrhG, because according to these provisions, the author has a right to additional remuneration if the evaluation of his work is exceptionally successful and his original remuneration turns out to be inadequate in retrospect. A “buy-out” is therefore possible if an appropriate remuneration within the meaning of Section 32 (2) sentence 1 UrhG is received. However, it is questionable what is to be understood by the concept of appropriateness within the meaning of Section 32 (2) sentence 2 UrhG. Basically, the appropriateness is based on honest industry practice. This is determined from the objective ex ante point of view. The term industry practice is to be understood as "what a reasonable author usually demands and what an honest user gets into when he properly acquires the necessary rights". In addition, the measure of appropriateness is based on market conditions, risk borneings, incurred fixed costs and start-up investments. The appropriateness must be determined for each individual case. The more detailed circumstances, e.g. type, duration and extent of use, must also be taken into account. Lists are used for price orientation and calculation of the buyout license fee, such as B. the Velma list or the "Guidelines for acting fees and buyouts for advertising productions" of the associations SSFV, ACT, SBKV and SSRS, which specify the percentage surcharges depending on the type of use and region. If no adequate remuneration has been paid, Section 32 (1) UrhG applies. Appropriate remuneration is nothing new in the (advertising) film industry. Even before the introduction of Section 32 UrhG, appropriate remuneration had to be paid. The economic aspect also speaks for the admissibility of a “buy-out contract”. Authors do not take any economic risk with the “buy-out”. If, for example, a film production is unsuccessful, the author does not have to expect any losses. In addition, according to § 32a UrhG, the author is entitled to additional payment against the exploiter if there is a blatant disproportion between the fee and exploitation. In such a case, the recycler is obliged to “consent to a change in the contract”. A noticeable disproportion, according to a decision by the Berlin Chamber of Commerce, is to be affirmed "if the agreed remuneration deviates by 100% from the appropriate participation". Section 32a UrhG not only covers the income that the exploiter draws from the exploitation of the work, but also its advantages. Advantages within the meaning of § 32a UrhG also include "exploitation activities (...) that are not directly aimed at sales transactions with the use itself". The subsequent remuneration is not based on the time of the conclusion of the contract, but determined ex post what “has to be done normally and fairly” taking into account the individual case. In addition, the BGH makes it clear in its case law that the contractual agreements represent party agreements and are therefore usually not subject to a content control according to § 307 BGB. If an author decides to surrender all his rights and claims to his work to a third party for a fee, this is generally not illegal. However, that does not mean that the parties have no limits at all. In the area of ​​the "buy-out", as already discussed, the author is guaranteed appropriate remuneration in accordance with Sections 32, 32a UrhG.

Individual evidence

  1. ↑ On the whole: Wandtke / Grunert-Wandtke / Bullinger, UrhR, Rn. 92.
  2. ↑ On the whole: Wandtke / Grunert-Wandtke / Bullinger, UrhR, Rn. 92.
  3. ↑ a b http://www.nageldinger-film.de/videoproduktion-werbespot-tv-spot/ , as of April 10, 2014
  4. ↑ Niemann in: "The right of the picture" p. 98.
  5. ↑ a b c http://www.indiskretionehrensache.de/2011/04/social-media-und-buyout-rechte/ , as of April 10, 2014
  6. ↑ Archive link ( Memento of the original from August 8, 2014 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. , As of June 11, 2014  @1@ 2Template: Webachiv / IABot / www.adassoc.org.uk
  7. ↑ http://www.buyout.pro/differences-buyout-residual-usage-fee/ , as of April 10, 2014
  8. ↑ http://www.sagaftra.org/content/about-us , as of June 11, 2014
  9. ↑ http://vimeo.com/channels/634248  ; As of September 30, 2014
  10. ↑ On the whole: Hartlieb / Schwarz, Chapter 93 Rn. 26th
  11. ↑ http://www.instyle-models.com/de/lexikon/buyout.html , as of April 10, 2014
  12. ↑ Schulze-Dreier / Schulze, UrhG, to § 31 marginal no. 110 ff.
  13. ↑ Wandtke / Grunert-Wandtke / Bullinger, UrhR, Rn. 92.
  14. ↑ Becker, ZUM 2005, 303, 306.
  15. ↑ Castendyk-Löwenheim Handbuch des UrhR, Rn. 217.
  16. ↑ Schulze-Dreier / Schulze, on § 32 UrhG Rn. 47.
  17. ↑ Hartlieb / Schwarz, Chapter 53 Rn. 7th
  18. ↑ Castendyk-Löwenheim Handbuch des UrhR, Rn. 212.
  19. ↑ http://www.velma-models.de/images/buyout.pdf , as of April 10, 2014
  20. ↑ Archive link ( Memento of the original from August 9, 2014 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. , Status unknown  @1@ 2Template: Webachiv / IABot / www.sbkv.com
  21. ↑ On the whole: Hartlieb / Schwarz, Chapter 53 Rn. 7th
  22. ^ Reber, ZUM 2001, 282, 288 f. .
  23. ↑ BeckRS 2010, 02452 (page 9).
  24. ↑ a b BeckRS 2010, 02452 (page 10).
  25. ↑ BeckRS 2010, 02452 (page 12).
  26. ↑ BGH, ZUM 2012, 793, 797.
  27. ↑ BGH, ZUM 2012, 793, 799.