The use of third-party works without attribution generally constitutes an infringement of copyright law. However, in a recent ruling, the Higher Regional Court (OLG) of Frankfurt found that an upload contract with microstock agencies can effectively lead to a waiver of the right to attribution (ruling of September 29, 2022 – 11 U 95/21). This ruling sheds new light on the waiver of copyright attribution and the rights of creatives who distribute their works via such platforms.
What are microstock portals?
Microstock portals are platforms that are operated by stock photo agencies and offer pre-produced images, so-called stock photos, at favorable conditions. These photos are often issued in the form of simple licenses to a basically unlimited number of buyers. The uploading photographer grants the stock photo agency the right to use the uploaded images and the option to grant sublicenses to the portal’s customers. This process can lead to a waiver of attribution, as the works are often used anonymously.
Defendant uses photographer’s images without crediting the author
In the case decided by the Higher Regional Court of Frankfurt, the defendant acquired a sublicense to an image of the plaintiff via the microstock portal Fotolia. It used the image as a background for its website without naming the plaintiff as the author. The plaintiff then asserted claims for damages and injunctive relief and invoked his right under Section 13 of the German Copyright Act (UrhG), which requires the author to be named. The allegation was that a waiver of the naming of the author was ineffective in this case, as it placed him at an unreasonable disadvantage.
In the upload contract between the plaintiff and Fotolia, the General Terms and Conditions (GTC) stipulated that both the photo agency and its customers had the right, but not the obligation, to indicate the author. The plaintiff argued that such a GTC clause was non-transparent and therefore invalid and that the clause unreasonably disadvantaged the author. Such a waiver of copyright attribution is therefore unacceptable for the affected parties.
Court decision: A break with previous case law on the waiver of copyright attribution
After the plaintiff had already lost at the Kassel Regional Court, he appealed to the Frankfurt Higher Regional Court. However, the OLG also confirmed the decision and came to the conclusion that a waiver of copyright attribution within the framework of such agreements is permissible. The court found that an author who uses a microstock agency to distribute his works and thus allows the waiver of copyright attribution is sufficiently compensated by the advantages of the microstock business model.
The low-cost sublicenses for end users are at the heart of this model and enable widespread distribution of works that would otherwise not be financially accessible to many companies. The plaintiff had saved time and money by placing his works on Fotolia, as he did not have to take care of the marketing himself. This ruling marks a clear break with previous case law, which assumed in favor of the author that the waiver of copyright attribution without appropriate compensation was inadmissible.
Decision of the Federal Court of Justice remains to be seen
The question of whether an author can effectively waive his right of designation for any type of use is still unresolved. In the present proceedings, the Higher Regional Court of Frankfurt allowed an appeal to the Federal Court of Justice (BGH). The decision of the BGH therefore remains to be seen. Should the judges of the BGH agree with the opinion of the OLG, this could lead to a deterioration in the legal position of authors.
Effects of the waiver of attribution on creatives and cooperation with microstock agencies
The ruling on the possibility of waiving attribution poses a dilemma for many creatives. On the one hand, cooperation with microstock agencies enables a wide reach and a passive source of income. On the other hand, it remains questionable whether the benefits actually outweigh the disadvantages if creatives see their works distributed without attribution. A decision by the BGH in favor of waiving attribution could change the way creatives work with microstock portals and have a long-term impact on the industry.
For authors, the question arises as to whether the benefits – such as reach and remuneration – actually compensate for the loss of attribution. After all, waiving attribution means not only giving up a legal position, but also the opportunity to present oneself as the creator of a work. Creative professionals should therefore carefully consider whether they accept the terms of such a waiver, especially if future case law further consolidates this waiver in contractual agreements.
It remains exciting to see how the BGH will decide and whether this will set new standards for the waiver of copyright attribution. It is already clear that the decision will be of great importance not only for creatives and authors, but also for companies that use stock photos.
