Bullfighting photo causes a stir
The defendant restaurant owner used a photograph showing a bullfighting scene for his website. The photograph captured the moment in which the bull charges towards the red cloth and the bullfighter evades the attacking animal. The image was altered by the defendant in such a way that he added the motif of a dancing couple in pale colors by means of photo editing. The original bullfighting photograph came from the collection of an Internet picture agency, which took action against the restaurant owner because he published the photo motif on his website without the required attribution.
In principle, framing does not constitute copyright infringement
The term “framing” refers to the embedding of copyright-protected content (photos, videos, etc.) on your own website. One example of this is the addition of YouTube videos to various websites. The content is stored on the server of the original website operator so that the author or rights holder can decide at any time whether they want to change or even remove the work.
With regard to “framing”, the ECJ clarified in its “BestWater” decision from 2014 (decision of 21.10.2014, ref.: C-348/13) that the embedding of copyright-protected content on another website does not constitute an infringement of copyright. The guiding principle of the decision emphasizes that a work that has already been published by the rightholder is automatically made available to an unlimited number of users with the consent of the rightholder. For this reason, embedding the specific content on other websites is already covered by the consent of the copyright holder. It is important that the technical process remains the same on the new website and that it is clear to users that the specific content originates from another website.
The “BestWater” decision is not applicable to every framing process
The defendant restaurant operator based its argumentation on the ECJ decision “BestWater” and argued that making an image publicly available by framing does not constitute a copyright infringement.
However, according to the court’s correct assessment, the two case constellations differ in that in the present case a copyrighted image was copied without authorization and then stored on the user’s own server and then published on the user’s own website. In contrast, “framing” does not require a copying process or storage on the user’s own server. In contrast to the present case, the work is not presented to a new audience through the framing process.
Authorship could be determined in advance
On the other hand, the defendant argued in its defense that the lack of copyright attribution was due to the fact that the plaintiff’s website also did not show any copyright attribution for the photograph in dispute. However, a copyright notice was listed in the plaintiff’s catalog. The OLG Düsseldorf therefore rejected the defendant’s argument and emphasized that the authorship could be established on the basis of the note in the catalog. Even if the authorship of a work had not been expressly marked, the user could not assume that this work could be used without restriction. Rather, it is the user’s duty to obtain information as to whether the rights holder will consent to the specific type of intended use and under what conditions.
No free use
Finally, the defendant’s argument that the image was no longer subject to copyright protection (Section 24 (1) UrhG) due to the alteration was not convincing for the Düsseldorf Higher Regional Court. The court pointed out that the original authorship cannot be canceled by the specific modification within the meaning of Section 24 para. 1 UrhG can be canceled. The artistic value of the photograph was still the expressive bullfight scene and not the ordinary dance scene (added by the defendant). The fact that the dancing couple had been added in pale colors also argued that the bullfighting scene was the main motif for the viewer.
OLG Düsseldorf rules in favor of the plaintiff
The OLG Düsseldorf affirmed the existence of a copyright infringement and upheld the plaintiff’s claims. The defendant was ordered to cease and desist from making the work publicly accessible and reproducing it within the meaning of Section 97 para. 1 UrhG, reimbursement of warning costs and provision of information (OLG Düsseldorf, judgment of 16.06.2015, ref.: I-20 U 203/14).
The court clearly stated that it is not possible to follow the “BestWater” decision in the present case. The “framing” constellations are characterized by certain criteria that are not met in this case. In particular, it must be taken into account that the linking in “framing” does not require the content in question to be copied and is therefore subject to the same technical process. The content remains on the original server and is not made accessible to a new audience.
It is also essential for the decision of the Düsseldorf Higher Regional Court to point out that every user who intends to use content for other purposes must actively inform themselves about the authorship and the consent of the rights holder regarding further reproduction or publication of the work.