No compensation under licence analogy for Creative Commons licence

The Local Court (AG) Würzburg investigated the question of whether the violation of a Creative Commons licence entitles the author to assert damages under the licence analogy doctrine.

A website operator used a photograph of the author on his website. The author published the photograph under the Creative Commons licence CC BY-SA 3.0 DE. Thereafter, it could be freely reused, provided in particular that the name of the author was mentioned. This also applied to free commercial use. However, no such notice was displayed on the claimant's website.

The author notified the website operator that usage rights to the photograph exist on the website. Specifically, because he had neither been identified as the author nor had a hyperlink to the author's advertising presentation been created or included.

Among other things, it stated:

"(…) We currently assume that we can conclude this matter without a cease and desist letter or other legal measures, nevertheless we note as a precaution that your violation has been extensively documented by us. However, this is merely a precautionary measure. Of course, we hope to reach a quick settlement with you and that it will not come to a court dispute. (…)"

Subsequently, a settlement proposal was presented to the website operator, which offered a retrospective licensing of the image for a flat fee of EUR 800.00 plus 7% VAT. When the author merely provided a binding declaration of cessation, the offer was reduced to EUR 400.00. In other parallel proceedings, the author proceeded using the same method.

The dispute ultimately resulted in litigation before the AG Würzburg, in which the author sought to enforce his alleged damages claim against the website operator. The website operator, conversely, demanded reimbursement of his legal fees.

Systematic written notices impermissible

The AG Würzburg (judgment of 23.07.2020, case number 34 C 2436/19) denied the author the damages claimed under the licence analogy and awarded the website operator reimbursement of his legal costs.

In light of the numerous parallel proceedings, the court was convinced that the author systematically contacted users of his images in order to make excessive demands against them in the form of damages claims.

The letter sent to the website operator contained subtle threats that the matter could become significantly more expensive if it came to court. To this extent, it appeared necessary and expedient for the website operator to retain a lawyer who would prepare a defence letter and provide a binding declaration of cessation.

Licence analogy not applicable for Creative Commons licence

With regard to the damages claim, the court established that the author had failed to prove that he was entitled to a claim for payment against the website operator.

The defendant had not adequately substantiated the existence of a concrete loss in the form of lost profits. Even on the basis of the licence analogy doctrine, the result would not be different.

Within the framework of the licence analogy doctrine, it must be assumed what reasonable contracting parties would have paid as compensation for the acts of use carried out by the infringer in knowledge of the actual development during the infringement period. The court stated that the objective value of the use impairment must be determined. The amount of the damages must be estimated.

In addition to the extent of use, the value of the infringed right must be taken into account. Here, the court referred to the position of the Higher Regional Court (OLG) Köln (OLG Köln, judgment of 31.10.2014, case number 62/14) and adopted its assessments. Accordingly, a photograph that is made available free of charge for use within the scope of a CC licence must be valued at an objective value of EUR 0.00.

As a result, the author was not awarded the damages claimed.

Conclusion

In the opinion of the AG Würzburg, a photograph made available free of charge within the scope of a CC licence must be valued at an objective value of EUR 0.00. Accordingly, the assertion of damages on the basis of the licence analogy doctrine is excluded in the event of violations of a Creative Commons licence.