The plaintiff in a legal dispute decided before the Cologne Higher Regional Court licenses the well-known erotic magazine “Playboy”. This magazine 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 photos on its online portal without permission. The plaintiff therefore wanted to assert copyright claims for payment of license damages and went to court. However, the competent regional court initially rejected the claim.
The plaintiff appealed against this decision to the Cologne Higher Regional Court. In its judgment of 26 February 2021 (case reference: 6 U 189/19), the court ruled in favour of the plaintiff and awarded her a claim for royalty damages. The court found that the defendant agency had posted the photos on the internet, thereby carrying out an act of reproduction pursuant to Section 16 UrhG and making the images publicly accessible within the meaning of Section 19a UrhG.
Determination of damages by way of license analogy
The calculation of damages was based on the principles of the so-called license analogy. This approach is used when the damage in the context of a copyright infringement is difficult to measure in concrete terms. The purpose of the license analogy is to determine the objective value of the right of use that the contracting parties would reasonably have agreed as remuneration for the act of use had they entered into a contract. The specific circumstances of the individual case and the usual level of remuneration in the respective market segment are decisive here.
Factors that play a role in determining damages by license analogy include the usual value of the right of use, the economic significance of the right in question and any monopoly position of the rights holder. The existence of economically reasonable alternatives could also have an influence on the amount of the fictitious license fee.
Hardly any evidence for damage assessment
In this case, however, the Cologne Higher Regional Court saw hardly any individual indications for an exact determination of the license damage. In the opinion of the court, for example, the hypothetical license fee for a first publication of the model photos could not serve as a basis, as the images had already been made publicly accessible by the plaintiff. The amounts stated by the plaintiff for a first publication were therefore to be significantly reduced.
The court also considered the costs originally incurred by the plaintiff for the creation and licensing of the photos to be irrelevant for the assessment of the license damages. These costs were already covered by the sale of the magazines. By way of a license analogy, the court finally determined a fictitious license amount of EUR 2,300 per photo. This amount should adequately cover the unlawful use of the images and forms the basis for the license damages to which the plaintiff is entitled.
Importance of the license analogy in copyright law
The license analogy plays a central role in copyright law, especially in cases of unauthorized use of the work. The advantage of this method is that it enables a fair and comprehensible assessment of financial compensation, even in the case of damages that are difficult to measure. The license analogy method is particularly suitable in situations in which the rights holder is unable to make an exact assessment of the damages as no actual licensing has taken place.
License analogy is a procedure that is often used in the practice of law enforcement in the field of copyright and media law, as it offers the rights holder a fair opportunity to claim compensation for the damage incurred despite unauthorized use of his work. The license analogy calculates a fictitious value for the use of a work based on real market conditions, which enables the author to receive fair compensation.
This decision by the Cologne Higher Regional Court further confirms the license analogy as an important tool for determining claims for damages in copyright law. Especially in cases where images, texts or musical works are used without permission, the license analogy is a proven basis for calculating damages. The application of the license analogy to such cases strengthens the position of rights holders and effectively protects their creative achievements in the digital age.
