Thus consider carefully before you take wedding vows…

…whether you cannot find a better wedding photographer. The wedding photographer had namely published several pictures of a wedding that he had photographed without permission for advertising purposes on his website. Since this occurred without the consent of the bride and groom, they sued the photographer for injunction and payment of damages. The Regional Court (LG) Hamburg granted the claim at least as to the merits.

The photographer issued a cease-and-desist declaration in response to the pre-litigation warning letter and without acknowledgement of any legal obligation, and removed the published photographs that showed the bride and groom individually or together in an identifiable manner from the internet. No naming was associated with this. By contrast, the photographer refused to pay damages or to reimburse the warning letter costs. The wedding couple therefore sued him accordingly for payment of a fictional licence fee totalling EUR 6,000 and reimbursement of costs of approximately EUR 1,500.

The Court's Decision

The LG Hamburg granted the claim by judgment dated 18.10.2013 (Az. 324 O 59/13) at least as to the merits.

In the Court's view, the photographer violated the personality rights of the bride and groom by the unauthorised use of the photographs, namely the right to one's own image. It was exclusively the prerogative of the person depicted to decide whether and how he or she wished to place his or her image at the service of the commercial interests of third parties. According to the Court's reasoning, the decision concerning the advertising use of the image constitutes a property-like exclusive right, and therefore unauthorised interference with this right results in an unlawful pecuniary advantage for the advertiser, who would normally have had to pay a licence fee for the use of the photographs.

However, the Court did not follow the conceptions of the persons depicted as regards the amount of this (fictional) licence fee. According to the Federal Court of Justice (BGH), the assessment should be based on what reasonable contracting parties would have agreed, for which all circumstances of the individual case must be taken into account. Since the bride and groom are not prominent and no particular advertising value is associated with the exploitation of their images, the Court ultimately arrives at a licence and accordingly damages of EUR 250.00 each. In doing so, the information provided by the photographer was also taken into account, in which he disclosed a relatively short period of use of 3 months and monthly visitor numbers (on the entire website in total) of approximately 300.

Furthermore, the bride was awarded monetary compensation for one of the photographs on which she was depicted wearing only scanty underclothing for the immaterial damage suffered. This presupposes a serious violation of personality rights, which the Court found to be present here. The compensation was deemed appropriate in the amount of EUR 2,000.

The warning letter costs were ultimately awarded in essence.

Conclusion

In my view, it is inconsistent that the Court, in assessing the licence damages, on the one hand bases itself on fictional 'reasonable contracting parties', but on the other hand applies the actual period of use according to the information of the infringer. It would be more correct to also ask here what the contracting parties would have chosen for a licence period in light of the specific form of use.

Furthermore, it is noteworthy that the relatively high assessment of 'damages for pain and suffering' for the bride, bearing in mind that in other tort law one must be comparatively severely injured for EUR 2,000. This demonstrates that the personality is afforded effective protection before German courts.