Determination of damages by license analogy for image rights infringements

Cologne Higher Regional Court: The licensee of "Playboy" receives € 2,300 per image for the unlawful use of nude photos of Kate Moss.

The plaintiff in a legal dispute decided before the Cologne Higher Regional Court licenses the well-known erotic magazine “Playboy”. The magazine had published photos of the famous model Kate Moss as part of an anniversary issue.

Compensation for damages due to publication of nude photos?

A news agency had published some of these images on its online portal. The plaintiff therefore wanted to assert copyright claims for payment of license damages and went to court. However, the competent regional court dismissed the claim.

The plaintiff appealed against this decision to the Cologne Higher Regional Court. In its judgment of 26 February 2021 (case no.: 6 U 189/19), the court ruled that the plaintiff was entitled to royalty damages. This is because the defendant agency had posted the photos on the internet and thus committed an act of reproduction pursuant to Section 16 UrhG and made images publicly accessible within the meaning of Section 19a UrhG.

Determination of damages by way of license analogy

The amount of damages should be calculated according to the principles of license analogy. For this purpose, the objective value of the right of use must be determined. The question to be asked is what the contracting parties would reasonably have agreed as remuneration for the acts of use performed, taking into account all circumstances of the individual case.

For example, the usual value of the right of use, the economic significance of the protected right, a possible monopoly position of the owner of the property right and the existence of economically reasonable alternatives must be taken into account.

Hardly any evidence for damage assessment

However, the court saw little individual evidence for such a finding. According to the court, the hypothetical license fee for a first publication of the model photos had to be disregarded. This was because a first publication had not taken place as a result of the infringement. After all, the images had already been made available to the public by the plaintiff itself. The amounts stated by the plaintiff for the first publication were therefore to be reduced considerably.

The court also considered the costs incurred by the plaintiff for the photos to be irrelevant for the assessment of damages. This was because they had been covered by the sale of the magazines as planned. On the basis of these considerations, the OLG finally determined a fictitious license amount of EUR 2,300 per photo.

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