In its ruling of 24 August 2017, the Regional Court of Cologne confirmed its previous case law on the calculation of license damages for the unauthorized use of photographs (Ref.: 14 O 111/16). Accordingly, the MFM guideline is not to be applied schematically, but merely represents a guideline for the calculation of damages.
For high-quality photos that were not taken by a professional photographer, a deduction of 20% may be made.
eBay retailer uses product images without a license
A retailer operating on eBay had used high-quality images by an amateur photographer as part of his listing and the design of his own homepage. He had not previously obtained licenses or permission from the photographer to use the product photographs. The eBay retailer also did not name the photographer, but inserted his company logo into the photos.
The Cologne Regional Court then ordered the retailer to pay damages in the amount of EUR 3,472.
Compensation is based on the reasonable license fee
In principle, the amount of damages for copyright infringements is based on what the author could have demanded in the context of reasonable remuneration. In particular, this is based on what reasonably thinking contractual partners would have agreed as remuneration. However, the exact amount is to be determined by the judges themselves through estimation, Section 287 ZPO.
Use of the MFM tables for judicial estimation
In order to obtain an initial reference point for the judge’s estimate, it makes sense to use the industry-standard remuneration rates and tariffs as a benchmark. The image fee tables of the Mittelstandsgemeinschaft Foto Marketing (MFM tables) provide such a benchmark for high-quality photos. These tables contain various sections – such as “Online use, Internet, web design, pop-ups, banners, online stores (advertising/PR/corporate publishing)” – with different fee rates for the use of photographs.
No schematic application of the MFM tables
Even if the tables provide a very good point of reference, the Cologne judges are of the opinion that they should not be applied schematically. Rather, the court must take all individual circumstances into account when calculating the damages. Only in this way can the court arrive at a realistic and therefore meaningful basis for estimating the appropriate license fee.
Markdowns from MFM tables for amateur photographers
If the photos were taken by a non-professional photographer, even if they are of a similarly high quality, the MFM table can only be used to a modified extent. This is because it includes professionally paid image fees, which are calculated on the basis of higher production costs and other costs and risks incurred by professional photographers.
If the photographer – such as a hobby photographer in this case – does not incur such costs and risks, a discount is justified. As the photos in this case were nevertheless of high quality, the Cologne judges considered a discount of only 20 % to be appropriate. This view is not contradicted by the fact that the amateur photographer usually licenses his photos using the MFM tables.