Trimmed for Fat – Distortion of a Celebrity Photo?

May photographs by a photographer be altered by means of image editing and then made available to the public on the internet as a parody of the original recorded image, or does this constitute a copyright infringement? Under what circumstances such image editing constitutes an authorized free use of copyright-protected works or whether the use must cease due to the distortion of the work is a matter the Federal Court of Justice (BGH) recently had to decide.

The internet portal "BZ News" from Berlin launched an action in which its readers were called upon to upload images of celebrities to the portal. The photos of the celebrities were to be edited by the users in such a way that the stars in the photos appeared as fat as possible. The action on the internet portal was advertised under the title "Celebrities on the Internet Trimmed for Fat".

In the course of this action, a photograph by a photographer was altered without his consent by a user and posted online. The affected photographer subsequently sued "BZ News from Berlin" for the distortion of his copyright-protected work, seeking an injunction, damages and monetary compensation.

The operators of the internet portal, in turn, contended that the images posted as part of the action "Celebrities on the Internet Trimmed for Fat" were permissible as parodies under copyright law and that accordingly no distortion had occurred.

After the Higher Regional Court (OLG) Hamburg ruled in favour of the operators of the internet portal and allowed the use, the photographer filed an appeal with the Federal Court of Justice (BGH).

Decision of the Court

The Federal Court of Justice (BGH) overturned the decision of the lower court withJudgment of 28.07.2016 (Az. I ZR 9/15)and remitted the dispute to the Higher Regional Court (OLG).

The essential characteristics of a parody consist in recalling an existing original work which, however, exhibits clear differences compared to the original. Furthermore, the parody must be humorous in nature or constitute a mockery.

In the present case, it was therefore to be assumed that a parody existed. The appellate court, however, should have taken into account that the parody involved a distortion of the work and that the alteration did not directly engage with the original work. It was decisive to conduct a balancing of interests, which would weigh the interests of the author against those of the public. The OLG had not done this sufficiently, so that the dispute had to be remitted.

Conclusion

The Federal Court of Justice (BGH) considers a claim for damages by the photographer to be fundamentally conceivable and states, however, that the existence of free use could not at all be affirmed on the basis of the reasoning provided by the appellate court. Therefore, the Federal Court of Justice (BGH) had to remit the matter to the Higher Regional Court (OLG) Hamburg.