So-called stock photos are used extensively. The Frankfurt Higher Regional Court has now ruled that the waiver formulated in the terms and conditions regarding the naming of the author is effective (Ref.: 11 U 95/21).
Photographs can be protected by copyright. Copyright protection includes both the personal rights of the author and the exploitation rights. The exploitation right is violated if the photo is published by a third party without the photographer having granted them a right of use. If a right of use exists but the photo is published without naming the photographer, the personal rights of the author are violated. The right to be named can only be waived if agreed upon, explains the law firm MTR Rechtsanwälte. Copyright is one of the main focuses of the firm’s consultancy.
The Frankfurt Higher Regional Court ruled on September 29, 2022, that waiving the naming of the author can be agreed upon in the terms and conditions (GTC).
In the case at hand, a photographer had concluded a so-called upload contract with a microstock portal. The portal was granted the right to use the photos, which included the right to grant sublicenses to the portal’s customers. A customer had used the photographer’s photos on her website without naming him as the author. The photographer, therefore, filed a suit for injunction and damages.
The suit was unsuccessful. The Frankfurt Higher Regional Court found that the plaintiff had effectively waived his right to be named as the author under the contract with the platform. The terms and conditions state that the platform and its users have the right but not the obligation to name the photographer as the author. Thus, the author effectively waived his right to be named, according to the court.
An author consciously chooses to use microstock portals, thus avoiding their own time and financial marketing effort. In particular, the lack of obligation to name the author makes the platform’s offering attractive to customers and is of significant importance for widespread use, which ultimately benefits the author, the court explained. There is no undue disadvantage to the author.
The law firm MTR Rechtsanwälte provides its clients with a lawyer experienced in copyright law.
