Classification of the Berlin Administrative Court’s Jurisprudence on the Film Levy for Series DVDs
The decision of the Berlin Administrative Court, which ruled that DVD box sets of series are generally not subject to the film levy pursuant to § 66 et seq. of the Film Promotion Act (FFG), holds a significant position in the context of funding German film promotion. The core of the court’s assessment was the distinction between the levy obligation for so-called “video programs” classified as feature films and the treatment of television series marketed on DVD. The following analysis places the decision within the framework of the film levy system and addresses the economic and funding-related implications for producers, distributors, and investors.
Systematics of the Film Levy According to the FFG
Purpose and Scope of Application of the Film Levy
The Film Promotion Agency (FFA) is authorized under § 66 FFG to collect a film levy from certain exploiters. The purpose of this levy is the sustainable promotion of German films, whose financing is not exclusively left to market mechanisms. The levy obligation relates, among other things, to the first commercial release of “video programs” insofar as these are feature films. Through the guideline, the legislator aims to generate a concerted allocation of value creation shares from exploitation chains to finance new film projects.
Distinction Between Feature Films and Series
The authorities responsible for the FFA as well as the judiciary face the challenge of adequately delimiting the term “feature film” when qualifying audiovisual works. The term is not explicitly defined in the FFG. According to conventional interpretation, feature films include coherent, narrative works designed with the concept of a complete or at least coherent storyline and are specifically intended for film screenings – not least in cinemas.
Series formats, on the other hand, regularly differ through their episodic structure, a storyline told in separate individual episodes, and the recurring characters and settings. Film episodes originally intended for television broadcast thus deviate in central characteristics from the requirements of a “classic” feature film and, according to prevailing administrative and judicial practice, are not considered liable works pursuant to § 66 para. 1 no. 2 FFG.
Legal Consideration of the Decision of the Berlin Administrative Court
Facts of the Case and Decision Criteria
In the dispute, the plaintiff, a licensing publisher of DVD box sets containing TV series, contested a levy notice issued by the FFA. The dispute concerned whether the distribution of series DVDs qualifies as the “first commercial release of a leviable video program” (§ 66 para. 1 FFG).
The Berlin Administrative Court explicitly denied the levy obligation for DVD editions containing loosely consecutive episodes of a television series. According to the reasoning, such series do not constitute “feature films” within the meaning of the FFG. Characteristics of series are, on the one hand, the episodic structure and the format developed for television broadcasts, and on the other hand, the absence of an overarching, uniform dramaturgy that is decisive for a leviable feature film. The technical characteristics of the distribution medium – such as storage on a DVD – are irrelevant for the assessment.
Decisive Delimitation Criteria
The court relied on objective content criteria: decisive is whether the work shows a self-contained and artistically designed narrative arc that exceeds the level of serial television entertainment. In the case of DVD box sets composed solely of television episodes, this is usually lacking.
The decision thus differentiates between the formal compilation of several individual episodes on one medium and the qualifying determination of whether such a compilation constitutes a new leviable work with an independent artistic character. As long as only own or purchased TV series are exploited in this way, there is fundamentally no levy obligation to the FFA.
Economic and Funding-Relevant Significance of the Decision
Consequences for Producers, Distributors, and Rights Holders
The jurisprudence of the Berlin Administrative Court offers increased legal certainty, especially for commercial actors in the media sector, regarding the levy burden in the series marketing segment. For producers, rights dealers, and publishers, clarifying the delimitation criteria provides a more reliable basis for calculations concerning distribution models, licensing, and investment decisions.
Significance for the Funding System
As a result, the decision also affects the revenue from the film levy and the financing potential of the FFA, as the exploitation potential of TV series and related DVD editions is not subject to the allocation system. Film promotion financing thus continues to rely primarily on the exploitation of leviable feature films, which, in accordance with their intended function, make a significant contribution to preserving German film culture.
Classification of Additional Procedures
It should be noted that the decision of the Administrative Court Berlin under the file number VG 21 K 146.10 dated January 27, 2011, primarily refers to the individual case decided. A conclusive clarification of the issue for all conceivable series formats remains subject to further legal remedies and possible rulings by the highest courts. Until a settled higher court precedent is established, delimitation questions must continue to be assessed on a case-by-case basis (Source: VG Berlin, judgment dated 27.01.2011 – VG 21 K 146.10).
Outlook and Note on the Need for Consultation
The distinctions within statutory law and funding regulations in the area of film levy require, in individual cases, a precise evaluation of the respective exploitation models and rights constellations. The effects concern both tax calculations and strategic corporate planning in the media and entertainment industry. Companies, investors, and rights holders operating in this area of conflict can obtain further information on specific questions regarding tax and levy obligations through legal advice in tax law.
