Transfer of rights to photos in Amazon Terms and Conditions now effective after all?

The General Terms and Conditions for the online sales platform Amazon Marketplace provide that images uploaded by a user may also be used by third parties to advertise identical goods, since Amazon grants itself a corresponding licence in its Terms and Conditions. Whether such a time-unlimited transfer of rights to Amazon is effective was now to be decided by the Higher Regional Court (OLG) Cologne on appeal.

The US online retailer Amazon.com, Inc. grants itself a simple, free and unlimited right of use in uploaded images from its Marketplace sellers, which Amazon then passes on to other sellers for illustrating identical goods. In the underlying legal dispute, a first seller sued for the use of his product image by another Amazon Marketplace seller and competitor and sought an injunction against the reproduction and public display of his images. He was of the opinion that a licensing arrangement under Amazon's Terms and Conditions, should such an arrangement be effective at all, could in no way last longer than the first seller himself used the image on Amazon.

The Regional Court (LG) Cologne ruled in favour of the author (we reported on this), so that the OLG Cologne was appealed to for a decision at appellate court level.

The Court's Decision

By judgment of 19.12.2014, the Higher Regional Court (OLG) Cologne – Az. 6 U 51/14 – overturned the decision of the Regional Court.

The OLG Cologne upholds the Amazon Terms and Conditions as effective even with regard to reasonable remuneration owed to the author under the Copyright Act, as the sellers would not be unreasonably disadvantaged by the Amazon Terms and Conditions. The consolidation of different offers of identical products increases the attractiveness of the Amazon–Marketplace for potential customers and is therefore also advantageous for Amazon sellers. Moreover, there is no violation of the underlying principle of reasonable remuneration for authors.

Product photos are advertising materials, and it is in their nature that their use does not generate independent income. In order to provide legal certainty, the granting of unlimited rights of use is also necessary. If only limited rights of use were granted, it could never be stated with certainty whether the use of a particular photo was still covered by the grant of rights.

Conclusion

The OLG Cologne appears to have voted for the effectiveness of the Amazon Terms and Conditions on purely practical grounds, in order not to endanger the Amazon Marketplace business model. From a copyright perspective, however, this judgment is problematic, as in particular an unlimited and thus also not easily revocable transfer of rights in copyrighted works basically requires express consent. Whether the photographs regularly generate independent income should not play a role in this regard. Ultimately, it is the right of every author or rights holder to exclude third parties from the use of his photographs, which in some cases were created at considerable expense.