Due to copyright infringement, a photographer is entitled to compensation. This was decided by the Munich District Court with a judgment dated June 20, 2022 (Ref.: 42 S 231/21).
The creative distance between two works is an essential factor in assessing whether there is a copyright infringement. In other words, to avoid copyright infringement, the copy of the original work should exhibit as much distinctiveness as possible so that it can be perceived as an independent new work, explains the law firm MTR Rechtsanwälte. A simple text imprint on a photo is, however, insufficient, as the Munich District Court clearly demonstrated.
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, adding a caption in one corner to express her own opinion. The photographer contested this use and was successful. In the first instance, the Munich District Court ruled that the defendant was not allowed to use the photo and must pay compensation. The use of the photo was also not covered by § 50 of the Copyright Act (UrhG) in the context of reporting current events. Furthermore, use for citation purposes according to § 51 UrhG was not justified, the court clarified.
The Munich District Court confirmed the first instance judgment on appeal. The defendant had adopted the image almost unchanged. By adding a small caption, no new comprehensive artwork was created in which the protected image of the photographer was integrated, the court stated. It further affirmed that the use was also not covered by the limitation in relation to reporting on current topics. This is only possible if the depiction of an actual event is the focus, not the expression of one’s own opinion. Here, however, the defendant did not use the image to inform about the event, but rather to clearly express her own opinion and use it as her own advertisement.
Nor was it a caricature. The small caption did not create noticeable differences between the copy and the original, the court further noted.
Attorneys experienced in copyright law can provide advice.
