In a ruling dated February 11, 2016 (case reference: 4 U 40/15), the Hamm Higher Regional Court ruled that a flat-rate remuneration of EUR 10 per published image for a newspaper photographer is unreasonably low. He is entitled to additional remuneration in accordance with Section 32 UrhG. The calculation is based on the common remuneration rules for image fees for freelance full-time journalists.
Original remuneration of 10 € per picture
The plaintiff had been working as a newspaper photographer for a newspaper publisher from Essen since 2000. At the publisher’s request, the photographer supplied photo articles from the Märkischer Kreis, which were then published in various editions of the daily newspaper. Irrespective of the size of the pictures and the circulation, he received a net fee of 10 euros. From 2010 to the end of 2012, the photographer produced around 3,500 photo articles for the newspaper publisher.
With his lawsuit, he sought additional remuneration for the last three years. The basis for the remuneration was the Joint Remuneration Rules for Image Fees for Freelance Full-time Journalists. According to these rules, the net fees for first printing rights are between EUR 19.50 and EUR 75.50, as the amount of remuneration always depends on the size of the image and the circulation of the magazine.
Additional remuneration of 79,000 euros for newspaper photographers
The action before the Higher Regional Court in Hamm was successful. The court awarded the newspaper photographer additional remuneration totaling 79,000 euros. This was because the photographer was the author of the photo articles supplied and the publisher was his contractual partner. The court also ruled that an overriding collective agreement did not preclude the claim for additional remuneration, as the photographer was not a member of the German Journalists’ Association at the time of the publications.
Appropriate remuneration depending on image size and number of copies
In the opinion of the OLG, the fee of EUR 10 per contribution was not appropriate remuneration. As a result, the parties’ contract had to be amended. Even though the joint remuneration regulations for freelance full-time journalists only came into force in 2013, they could be used as a benchmark.
Higher remuneration for first printing rights
In the present case, the rates provided for the granting of a first printing right were decisive. The publisher had only placed the orders with the newspaper photographer in order to grant itself priority for publication.
Full-time photographers with similar image fee rates can be pleased about this case law – for all affected newspaper editorial offices, however, this is a wake-up call to change their existing contracts.