Enforcement of image rights on the Internet

Even in the digital age, not everyone is aware that intellectual property also enjoys legal protection. Above all, when it comes to photographs, it is obvious to many to resort to existing and easily accessible image material on the Internet in order to spruce up their private website or upgrade their own product catalogue in the online shop or on eBay. Often this is not done even with the awareness of acting unlawfully. Yet the consequences – especially in economic terms – can be fatal.

The unauthorised use, i.e. use undertaken without prior acquisition of appropriate rights of use, of third-party photographs (so-called "image theft") is per se unlawful. Neither do the legal consequences depend on commercial use of the image material nor is the creative height (= originality or individuality) constitutive of copyright-protected works a prerequisite for the statutory image rights. Admittedly, an elaborate photograph can be protected as a copyright work. Ultimately, however, pursuant to § 72 UrhG, every private or commercial "snapshot" is provided with related rights that are equivalent to those of a copyright work. The sole requirement is that the photograph can be attributed to a minimum of human activity, for which it suffices in case of doubt that the shutter was pressed. The quality and content of the image remain irrelevant to the question of legal protection.

Requirements of photograph protection

First, the widespread misconception must be dispelled that there is no danger in the private sphere. Acting in commercial transactions is a prerequisite for asserting trademark rights, technical property rights (utility models / patents) or warding off unfair competition. Copyright law, by contrast, knows no such differentiation. Even the private eBay seller therefore infringes the image rights of the photographer if he uses third-party product photographs in the course of his offerings. The same applies to the enhancement of a private website with images for which the required rights of use have not been acquired from the photographer. Finally, there is also – again, unlike trademark law – no risk of dilution. A large number of unlawful uses of images, as is frequently observed with product photographs of branded goods, does not diminish the image rights in any way.

Legal consequences of image theft

The unauthorised adoption of third-party photographs infringes the reproduction right and the right to make public access available of the photographer or the exclusive licensee. The latter is the person who, by virtue of an agreement with the photographer, is entitled to use the photographs to the exclusion of other persons or companies. He has, so to speak, a monopoly with regard to the use of the photographs in question. The law attaches a whole series of consequences to the infringement of these rights.

First, the rights holder has claims for removal and cessation. The removal claim includes the right to demand of the user of the photographs that he or she removes the ongoing infringement, i.e. removes the photographs from his offering. This claim corresponds to the frequent reaction to the warning letter issued by the photographer. However, the cessation claim is not thereby eliminated. This is based on the so-called risk of repetition, that is, the possibility that an infringement once committed could be repeated. This risk of repetition and thus the cessation claim can ONLY be eliminated by the issuance of a declaration of cessation backed by a penalty clause, i.e. one furnished with a contractual penalty agreement. Mere cessation of the unauthorised use of photographs is not sufficient for this purpose.

Furthermore, unauthorised use of photographs also gives rise to claims for damages and – in preparation for this – possibly also claims for information regarding the extent of use. Since the use of "stolen" image material regularly takes place without the mandatory naming of the author or photographer, this claim is twofold. On the one hand, the infringer is liable for what would have been agreed as remuneration in the context of a (hypothetical) licence agreement. In the absence of other evidence, the calculation of damages is based on the fee recommendations of the Mittelstandsgemeinschaft Foto-Marketing, which contain remuneration rates for a whole range of different types of use. Once this remuneration rate, which per photograph regularly ranges in the three-figure range, is determined, the photographer can proceed to claim damages for the failure to mention his or her name. This constitutes an infringement of the author's moral rights, which is regularly sanctioned by the courts with a 100% surcharge. As a result, the single use of a photograph in the context of – even private – eBay offering can result in damages payable of approximately € 500.00.

Enforcement of claims

The enforcement of the aforementioned rights depends on the circumstances of the individual case. The removal and cessation claim can be asserted in expedited proceedings in the form of a preliminary injunction if there is sufficient urgency (maximum 4 weeks since discovery of the infringement). For enforcement of the damages claim, however, regular litigation is always preferable. Both court proceedings are almost always preceded by a warning letter, which is intended to give the infringer of image rights the opportunity to settle at low cost. If he does not respond to this by issuing a declaration of cessation and payment of the claimed damages, the rights holder must seek judicial assistance. The costs of this warning letter shall be reimbursed by the infringer in accordance with the principles of so-called negotiorum gestio. This claim for reimbursement of warning letter costs can also be asserted in litigation.

We represent a number of internet retailers, photographers and image users. We are happy to advise you as well in problem cases or on general questions regarding image rights and their exploitation. Simply contact us without obligation by email or telephone.