Right to publication of interview tapes for memoirs of Helmut Kohl
4 Februar 2016
The Federal Supreme Court (BGH) decided in its judgment of 10.07.2015 (Ref. V ZR 206/14) that an interviewee does not become the owner of the tapes on which the conversations are recorded by processing or reshaping in accordance with § 950 (1) sentence 1 BGB, but that he has a claim to the release of the tapes due to the underlying contractual relationship under § 667 BGB.
In the present case, the plaintiff former German Federal Chancellor Helmut Kohl and the defendant, a well-known journalist, each concluded independent contracts with a publishing house, the content of which was, however, coordinated. The subject of these contracts was the preparation of Helmut Kohl's memoirs, which were to be written by the defendant - with the parties discussing the details of their cooperation directly with each other. In the years 2001 and 2002, the parties had held more than 100 days of talks about Mr. Kohl's entire life, which lasted more than 600 hours. The defendant did not hand over the tapes to Mr Kohl, but took them home to prepare the planned publication of the book. Due to later differences, in 2009 Mr. Kohl terminated his cooperation with the defendant and demanded the publication of all recordings on which his voice could be heard and which had been recorded by the defendant in 2001 and 2002.
The Regional Court of Cologne and the Higher Regional Court of Cologne each considered the action to be well-founded. The BGH dismissed the appeal, but with a different reason than that of the Higher Regional Court.
Accordingly, Helmut Kohl did not, as assumed by the Higher Regional Court, become the owner of the tapes pursuant to § 950 (1) sentence 1 BGB by processing them, because a tape does not become a new object solely by recording audio documents. The fact that the audio documents are historically valuable and unique does not change this. However, the parties had entered into a contractual relationship which, according to § 667 BGB, implied the obligation of the defendant to surrender to the plaintiff everything he had received for the execution of the contract and obtained from the agency. This not only included the documents made available, but also the tapes used by the defendant, since these were subordinate aids which the Commissioner had used to fulfil the order. Therefore, he had to transfer the ownership to the client Helmut Kohl, if the acquired material could not be handed over otherwise.
The complete judgement is available here.