The legal dispute before the Cologne Higher Regional Court concerned a photo of a trainer. The photo had been offered by the author on the internet photo platform “Fotolia”. It was purchased there by the later defendant and used on his website and made publicly accessible.

Author applies for injunction due to lack of copyright attribution

This was initially done without naming the author, but with the note “Insofar as the content on this site was not created by the operator, the copyrights are respected. In particular, third-party content is marked as such.” However, the later defendant then added a copyright notice to the image in dispute.

Weeks later, the author applied to the Cologne Regional Court for a temporary injunction to enforce an injunction and compliance with the copyright attribution. Fotolia’s terms of use required the author to be named in the event of “editorial use” of the image. However, the Regional Court rejected the application on the grounds that the use on the website was a non-editorial use and therefore the injunction was not necessary.

No urgency for an interim injunction

The author of the photo ultimately lodged an appeal against this decision by the Regional Court with the Cologne Higher Regional Court and continued to demand the issue of a temporary injunction. However, this appeal was unsuccessful (see decision of April 12, 2021, Ref.: 6 W 98/20). In the opinion of the Cologne judges, there were no grounds for a temporary injunction in this case. More specifically, there was no longer any urgency required for the temporary injunction.

This is because there is no longer an infringement by the defendant – after all, a copyright notice has since been affixed to the image. It is true that the mere cessation or termination of an infringement does not automatically lead to the risk of repetition ceasing to exist. However, in the case of claims for injunctive relief, the urgency as a prerequisite for the issuance of a preliminary injunction in copyright law does not result solely from the risk of repetition, but from the actual continuation of the infringing act.

Temporary injunction as a legal remedy in copyright law – opportunities and risks

This case shows the limitations and special features of a preliminary injunction in copyright law. While a temporary injunction is a quick and provisional solution for safeguarding rights, as can be the case with clear copyright infringements, copyright holders often encounter legal hurdles here. The purely factual termination of the infringement situation can therefore mean that the grounds for an interim injunction no longer apply. In such a case, the infringed author usually only has the main proceedings left, which can take longer and involve higher costs.

For authors and rights holders, this means that an injunction is not always the appropriate measure to secure their rights. Rights holders should therefore be careful in future in the event of possible infringements and, before taking legal action, carefully check whether the requirements for an injunction are met or whether the infringement has possibly already been remedied. The balance between the use of an interim injunction and regular proceedings on the merits must also be carefully considered in advance in such cases, especially as the interim injunction in copyright law is linked to the urgency of the infringement.