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 an interim injunction. This was because Fotolia’s terms of use required the author to be named if the image was used for “editorial purposes”. The Regional Court rejected the application on the grounds that the use on the website was a non-editorial use.

No urgency for a temporary injunction

The author of the photo ultimately lodged an appeal against the Regional Court’s decision with the Cologne Higher Regional Court. 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 precisely, there was no longer any urgency required for the injunction.

This is because there is no longer an infringement of rights by the defendant – after all, a copyright notice had been affixed to the image. It is true that the mere cessation or termination of an infringement does not lead to the cessation of the so-called risk of repetition. However, in the case of injunctive relief claims, the urgency as a prerequisite for the issuance of a preliminary injunction does not result solely from the risk of repetition.

In some cases, authors only have the main proceedings in copyright law

The purely factual termination of the infringement situation can therefore mean that the grounds for an interim injunction no longer apply. In this case, the infringed author only has the main proceedings left. Rights holders must therefore be careful in future and carefully check whether the infringement has possibly already been remedied before taking legal action.