Additional remuneration for use of photographs in e-paper in addition to print edition?

According to a judgment of the Higher Regional Court (OLG) Düsseldorf of 13.07.2010 (I-20 U 235/08), no separate remuneration is to be paid for the use of photographs in an e-paper if the photographer or copyright owner of the photograph has already granted the rights of use for the print edition and the circulation of the e-paper is comparatively low in relation to the print edition.

In the case to be decided, the defendant daily newspaper was granted rights of use by the photographer for several hundred photographs for the print edition. The defendant subsequently used these photographs also within the scope of the e-paper edition of the newspaper with identical content, without explicitly acquiring rights of use for this purpose and without paying separate remuneration. In his action for damages, the photographer argued that the use of photographs in an e-paper constitutes a different type of use compared to use in the print edition, which should be remunerated separately. The damages were calculated on the basis of the principles of licence analogy.

The decision of the court

According to the court's findings, which were preceded by an evidentiary hearing through the obtaining of an expert opinion, it is customary in the newspaper business – unlike with image agencies – that the remuneration for the use of photographs in the print edition of a daily newspaper also covers their use within the scope of an e-paper of identical content. Although it was assumed that the e-paper represents a different type of use, the damages to be paid were therefore assessed at € 0.00 per photograph, and the action was thus dismissed in substance.

According to the court's view, this should apply at least when the circulation of the e-paper is very low compared to the print edition. In the present case, the ratio was 1:1000 (e-paper: 1,000 / print edition: 1,000,000). It was expressly pointed out that an e-paper must be distinguished from online use. Whilst the e-paper is identical to the print edition and is distributed exclusively to paying customers, the photographs used in the online edition of a newspaper or magazine are not only available permanently, but also retrievable by an unrestricted number of persons. It can be concluded from this that the licensing of photographs for a print edition does not include use within the publicly accessible online offering.

It was left open whether the e-paper constitutes a different type of use compared to the print edition, since in the court's view this was not relevant to the decision in the present case. Likewise, it remains unclear whether no additional remuneration can be claimed even when the ratio of circulations changes significantly. The question therefore remains relevant in the just beginning iPad era.