EUR 15,000 dispute value for copyright infringement on photographs?

Is a dispute value assessment of EUR 15,000 for a claim for injunction against the unauthorised use of three photographs in the context of a commercial internet presence to be objected to? The Higher Regional Court (OLG) of Munich had to decide this question in the course of a dispute value appeal.

A picture agency instructed a supplier of modular houses to desist on account of the use of three photographs on their homepage and demanded disclosure, a declaration of the obligation to pay damages and payment of warning letter costs.

Following the conclusion of a settlement in the course of the oral hearing, the Regional Court (LG) Munich set the dispute value in accordance with the dispute value stated by the picture agency in the statement of claim at EUR 16,050, of which EUR 15,000 was attributable to the injunction claim in respect of the three photographs.

The trader contests this by means of the dispute value appeal, by which he seeks a reduction of the dispute value set by the Regional Court (LG) Munich.

Court decision

The Higher Regional Court (OLG) Munich rejected by order of 10.04.2015 – Az.: 6 W 2204/14 – the dispute value appeal of the trader, as the dispute value assessment of the picture agency was not to be objected to.

The dispute value of an injunction claim is to be determined in principle according to the interest of the picture agency in preventing further breaches. The basis for the assessment to be carried out is, on the one hand, the value of the infringed photographs. Moreover, the character and scope of the threatened further acts of infringement, the size and importance of the infringer and the nature and extent of the infringement are to be evaluated in particular.

The Higher Regional Court (OLG) is well aware that the dispute value assessment of the instance courts exhibits a very wide range. However, the photographs at issue by a professional photographer are neither in terms of their subject matter nor in terms of quality comparable with a product photograph in sales offers on internet platforms, which as a rule are assessed with a low dispute value.

Here the photographs were used to design the commercial internet presence of a supplier of modular houses. In this respect, the use is not comparable with use as a product photograph in eBay listings. For, unlike the use of product photographs, which as a rule will only take place for a certain period, the use at issue here, for designing a commercially used internet presence, was designed to be of a permanent nature.

Conclusion

The assessment of a dispute value for the copyright injunction claim is, like the assessment of an appropriate licence fee, a challenge in view of the non-uniform case law of the instance courts. Ultimately, it is always a question of individual circumstances in which the interest of the copyright holder in preventing the infringement must be evaluated.