Infringer's surcharge for copyright infringement in photographs requires legitimate interest of the photographer

It has become almost mandatory to calculate damages in the event of infringement of copyrights in photographs according to the fee rates of the MFM (Mittelstandsgemeinschaft Foto-Marketing) and to apply a surcharge of 100% in the absence of an author attribution. Many courts do this without objection – with exceptions, such as the Regional Court (LG) Stuttgart in its default judgment of 28.02.2013 (17 O 872/12) explains.

The proceedings are based on a simple infringement of copyright in photographs. An eBay seller had taken images from another seller and inserted them into his offer. All of the images were produced by the plaintiff himself and were used exclusively for the promotion of his own offers.

The court's decision

In the view of the Regional Court (LG) Stuttgart, this is insufficient to double the damages claim due to the absence of author attribution. This would require that the author / photographer have a comprehensible interest in the mention of his name in connection with the use of the image, i.e. that it have some advertising effect. Otherwise, no separate economic value could be attributed to the omitted author attribution. The author's right to attribution under § 13 S. 1 UrhG was not disputed for this purpose.

To this end, the Regional Court (LG) states as follows:

"The author certainly has the right to recognition of his authorship in his work pursuant to § 13 Sentence 1 UrhG, but a surcharge on the customary license fee is not granted schematically merely because of the absent author attribution. According to the court's view, a surcharge is excluded if the infringement concerns the simplest photographs, the author is not a professional photographer and there is otherwise no indication of an advertising effect of the author attribution. In this case, no economic value can be attributed to the author attribution (see also Local Court (AG) Düsseldorf GRUR-Prax 2012, 386). An economic value can only be attributed to author attribution if a potential customer of the photographer could recognise the quality of the work and could resort to the photographer for future commissions based on the mention of his name, or if the photographer could independently increase his reputation in the industry through the photographs. The plaintiff's photograph in question does not show particularly high-quality and professional work and it is furthermore not to be assumed that she would use the photograph to advertise her work as a photographer or to establish herself a good reputation in general."

In the oral hearing, the court – to that extent consistently – also objected to the calculation of damages based on the MFM fee rates and stated that the damage should be estimated at no more than € 100 to € 150. Nevertheless, in the present default judgment, the full MFM rate as applied for was awarded – but without the infringer's surcharge. In view of the court's remarks in the oral hearing, this is possibly only due to the default situation, because the applicability of the MFM fee rates was not disputed. It cannot therefore be ruled out that damages in the event of a contested decision would have been considerably lower.

The decision shows that it could become more difficult in the future for dealers who produce their image material themselves to enforce damages claims for the infringement of their copyrights in photographs. However, the important weapon of the "injunction" remains unaffected by this. The unlawful use of images can therefore continue to be stopped in full.