Online book trade: liability for violations of personality rights in photographic calendars

Are online book retailers liable for violations of personality rights in the calendars they sell? The Higher Regional Court (OLG) Hamburg rendered a decision on this matter.

A book retailer operates an online shop through which, among other things, books and calendars can be purchased.

The claimant is an internationally renowned pop musician.

The book retailer offered a calendar online that featured a portrait of the musician on the front cover. In addition, each of the 12 calendar pages contained a photograph of the pop musician, and on the back of the calendar, next to the 12 photographs in reduced view, there was another portrait of the musician together with a facsimile of his signature. The calendar originated from a third party.

The musician asserted that the images were commissioned works and that he had given no consent for the distribution of the photographs through the calendar. He sued the book retailer for an injunction.

The book retailer countered by arguing that carrying out a routine inspection of every sold work for possible rights-infringing content would be tantamount to performing the task of book trading.

The Regional Court (LG) Hamburg affirmed the musician's claim for an injunction.

The court's decision

The Higher Regional Court (OLG) Hamburg confirmed the view of the Regional Court (LG) Hamburg with Urteil vom 26.01.2017 – Az. 5 U 138/13.

The musician was able to demand from the book retailer an injunction against offering and putting into circulation the calendar due to the violation of his personality right in the form of the right to his own image.

Portraits may only be distributed with the consent of the person depicted. The portraits were distributed through printing in the calendar and its distribution. There was no consent from the artist. The court is of the opinion that the book retailer must be regarded as the person publishing the image, even if a third party had produced the calendar, because he offered and distributed the calendar by including it in his portfolio. The online retailer is responsible as the perpetrator for the distribution of the portraits. He offered the calendar for sale in his own name and at his own cost.

Summary

When an online book retailer includes photographic calendars that infringe the right to one's own image in his assortment, the rights-infringing act is attributed to him as his own – regardless of whether the retailer is aware of the rights-infringing contents of the calendars. An injunction can be successfully asserted.

Whether a claim for damages against the retailer also exists depends in each individual case on whether the duty of care has been fulfilled.