Actually an infringement of copyright law: using other people’s works as your own. However, the Higher Regional Court of Frankfurt has now determined that an upload contract with microstock agencies can effectively lead to a waiver of the right to be named as the author (judgment of September 29, 2022 – 11 U 95/21)
What are microstock portals?
So-called. Microstock portals are operated by image agencies that offer pre-produced images (stock photos) on their websites at favorable conditions. Licenses to the photos are not granted exclusively, but in the form of simple licenses to a basically unlimited number of buyers. The uploading photographer grants the stock photo agency the license to use the uploaded images and to grant sublicenses to the portal’s customers.
Defendant uses photographer’s images without crediting the author
In the case in question, the defendant had acquired a sublicense to an image of the plaintiff via the microstock portal Fotolia and then used it as a background for its website without naming the plaintiff as the author. The plaintiff then asserted claims for damages and injunctive relief, as his rights under Section 13 UrhG had been infringed.
There was an upload contract between the plaintiff and Fotolia, in the terms and conditions of which it was agreed that both the photo agency and its customers have the right but not the obligation to indicate the author.
The plaintiff argued, among other things, that such a general terms and conditions clause was invalid for reasons of transparency and also led to unreasonable disadvantages.
Court decision: Break with previous case law
After the plaintiff had already lost at the Regional Court in Kassel, he appealed to the Higher Regional Court in Frankfurt in the second instance. However, the judges there also came to the conclusion that such a waiver of rights was not inadmissible. An author who uses a microstock agency to distribute his works and allows his own works to be sublicensed is sufficiently compensated for the loss of rights. It is precisely the offer of cheap sublicenses to the end user that makes the business model of microstock agencies successful in the first place and at the same time ensures mass distribution of the images. By posting the images on the Fotolia website, the plaintiff saved time and money, as he did not incur any further marketing costs.
In previous case law, it was always assumed in favor of the author that adequate compensation for the waiver of naming was not to be assumed and therefore a waiver clause to this effect was always found to be invalid.
Decision of the BGH remains to be seen
It was not clarified in these proceedings whether an author can effectively waive his copyright for any type of use. With regard to this aspect, an appeal to the Federal Court of Justice was permitted. The decision there is still pending.
It therefore remains to be seen whether the BGH will agree with the opinion of the OLG. This could lead to a significant deterioration in the representation of authors and it is important to consider what impact such a deterioration in the position of authors will have on their cooperation with microstock image agencies. According to the court’s opinion, the compensation for the waiver of rights lies, among other things, in the wide reach that authors can achieve through distribution via microstock portals. But whether the benefit is so great if the authors are no longer associated with their works is questionable.