A photographer is entitled to compensation for infringement of his copyright. The Munich Regional Court decided this in a verdict dated June 20, 2022 (Az.: 42 S 231/21).
The creative distance between two works is an essential factor in determining whether a copyright infringement exists. Meaning: To avoid copyright infringement, the copy of the original work should exhibit as much individuality as possible so that it can be seen as an independent new work, explains the commercial law firm MTR Rechtsanwälte. A simple text overlay on a photo, however, is insufficient, as the Munich Regional Court made clear.
In the underlying case, a professional photographer took a photo of a performance artist at an event. The defendant published this image on her Facebook profile, added a caption in one corner, thereby expressing her own opinion. The photographer opposed this use and was successful. In the first instance, the Munich District Court decided that the defendant was not allowed to use the photo and must pay damages. The use of the photo was not covered by § 50 of the Copyright Act (UrhG) in the context of reporting on current events. Nor was its use for quoting purposes justified according to § 51 UrhG, the court made clear.
The Munich Regional Court upheld the first-instance judgment on appeal. The defendant had adopted the image almost unchanged. By adding a small caption, no new united artwork was created into which the protected photograph was integrated, the court said. Further, it confirmed that the use was not covered by the limitations regarding news reporting on current topics. This is only possible if the depiction of an actual event is central and not one’s own expression of opinion. Here, the defendant did not use the image to inform about the event, but rather to express her own opinion and use it as personal advertising.
Nor was it a caricature. The small caption showed no noticeable differences between the copy and the original, according to the Regional Court.
Lawyers experienced in copyright law can provide advice.
