In its decision of 6 September 2016 (case reference: 32 SA 49/16), the Higher Regional Court of Hamm commented on the amount in dispute for an application for injunctive relief regarding a photo used for advertising purposes.
If a high-quality photo is used without authorization by a businessman for advertising purposes and the author claims injunctive relief, the amount in dispute is not less than €5,000.
The businessman not only used the photo without authorization, but also edited it beforehand.
Criteria for calculating the amount in dispute for an application for injunctive relief
The amount in dispute is generally determined by the courts at their own discretion, Section 3 ZPO. The decisive factor for the amount in dispute is the type and scope of the infringement, as well as the financial disadvantages suffered by the author from the use of his photo.
In the case of the Higher Regional Court of Hamm, the author of the photo himself put the amount in dispute for the application for injunctive relief at 6,000 euros. However, the value in dispute stated by the plaintiff is only indicative. They must be reviewed on the basis of the objective circumstances and with reference to experience and the usual determination of values in similar cases.
This is what the OLG Hamm said in the present case:
For the claim to cease and desist the use of individual photos used by competitors, case law has considered values of € 5,000 to € 6,000, in some cases significantly higher, to be an appropriate valuation. Lower valuations were regularly based on a one-off use of a photo by private individuals or small businesses in a time-limited auction.
Amount in dispute for unauthorized use of photos among competitors at least 5,000 euros
In the present case, the amount in dispute for the application for injunctive relief should be at least 5,000 euros. The author of the photo and the unauthorized user of the photo are in competition with each other. They both sell the product depicted in the photo in their online stores.
The unauthorized use impairs the author in his current and future use of the photo for his own purposes. In addition, the unauthorized user wants to use the photo not only for a short period of time, but permanently. The high semi-professional quality of the photo also plays a role in determining the amount in dispute.
Calculation of the value in dispute in individual cases
Even after the Hamm Higher Regional Court’s ruling, the following still applies: the amount in dispute must be assessed according to the circumstances of the individual case.
For example, a value in dispute of € 10,000.00 is not uncommon, especially for (highly) professional images (e.g. Regional Court of Cologne, judgment of 19.05.2016 – 14 O 283/15). However, a schematic addition of the amounts in dispute when using several images is probably prohibited (OLG Cologne, judgment of 13.07.2016 – 6 W 71/16 and 6 W 80/16).