So-called stock photos are widely used. The Higher Regional Court of Frankfurt has now decided that the waiver of naming the author, formulated in the terms and conditions, is effective (Case No.: 11 U 95/21).
Photographs can be protected under copyright law. This copyright protection includes both moral rights and exploitation rights. The exploitation right is violated if the photo is published by a third party without the photographer granting them a usage right. If a usage right is present, but the photo is published without naming the photographer, the moral right is violated. The naming can only be waived if agreed, explains the business law firm MTR Rechtsanwälte. Copyright law is a focus area in the consultancy of the law firm.
On September 29, 2022, the Higher Regional Court of Frankfurt decided that the waiver of naming the author in the General Terms and Conditions (GTC) can be agreed upon.
In the case at hand, a photographer had entered into a so-called upload contract with a microstock portal. The portal was granted a usage right to the photos, which also includes 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 lawsuit for an injunction and damages.
The lawsuit was unsuccessful. The Higher Regional Court of Frankfurt found that the plaintiff 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 as the author, according to the court.
An author consciously chooses to use microstock portals, thereby avoiding their own time and financial marketing efforts. Particularly, the lack of an obligation to name the author makes the platform’s offer attractive to customers and is of significant importance for widespread distribution, which ultimately benefits the author, as explained by the court. An unreasonable disadvantage to the author does not exist.
The law firm MTR Rechtsanwälte provides its clients with an attorney experienced in copyright law.
