The importance of copyright review for entrepreneurs when outsourcing creative services
The protection of intellectual property plays a central role in today’s digitized business world. Especially for founders who are realizing their business ideas, careful handling of third-party copyrighted works is essential. A recent decision by the Higher Regional Court of Frankfurt am Main in 2023 (Ref. 4 W 13/23) emphasizes that the responsibility for compliance with copyright regulations cannot be delegated to external service providers.
Facts: Rights review when commissioning a web designer
In the underlying case, a business founder commissioned a web designer to create a website, during which image and text elements belonging to third parties were incorporated into the site. Subsequently, the founder received a formal warning because the incorporated works—particularly photographs—had been used without the consent of the respective rights holders. The founder claimed she had assumed that the service provider she had hired had acquired all the necessary rights.
The Higher Regional Court of Frankfurt clarified that it is the responsibility of the client to ensure, before publication and use, that all necessary usage rights are obtained for all content used. Careful handling of third-party creative works therefore falls directly within the area of responsibility of every business owner—and thus also of founders.
Key legal issues and their assessment
Principal responsibility of the client for acquiring rights
The court stated that the website operator could not assume in good faith that the service provider had checked and lawfully obtained all usage rights. The protection of intellectual property is not diminished by commissioning third parties. On the contrary, clients are obligated, before using third-party works, either to document the lawful acquisition of the required rights themselves or at least to reliably verify this.
Liability risk: No privilege for founders
Even in the case of new businesses or a lack of knowledge about copyright law, jurisprudence does not provide for a reduction in liability. The expectations regarding the duty to inquire (‘Erkundigungspflicht’) are independent of the founder’s level of experience. Thus, it is clearly established that inexperience with copyright requirements or cooperation with external service providers does not protect against liability for infringements.
Silence does not indicate legality
It should also be noted that the involvement of third parties in the creation of websites or other marketing materials does not constitute an implicit guarantee of their legality. If clients rely on the service provider without conducting their own checks regarding rights acquisition, they do so at their own risk.
Practical relevance for companies and founders
Prevention of liability cases
The decision of the Higher Regional Court of Frankfurt reinforces the necessity to review all copyright-related framework conditions before materials are published or used for commercial purposes. This applies to all externally sourced creative content, regardless of whether it is provided by photographers, graphic designers, programmers, or web designers.
Contract structuring and documentation
This also includes clearly defined contractual agreements with external service providers as well as reliable documentation of the granting of rights. Companies are well advised to have it contractually confirmed that all necessary usage rights will be transferred—however, this does not absolve them from carrying out checks and, if necessary, making inquiries if there are doubts.
Implications in the event of a formal warning or legal dispute
If a warning is issued or legal action is threatened due to alleged copyright infringement, there are no special exceptions in favor of founders. In particular, case law makes it clear that higher standards of care are expected in business transactions and that one must act according to proper business practices.
Final remarks
The current decision of the Higher Regional Court of Frankfurt makes it clear that all market participants, including founders, must observe and independently verify the legal framework of copyright when using third-party works. Delegated commissioning does not exempt one from duties of due diligence and verification. Entrepreneurial actions require structured procedures to minimize liability risks.
For further questions regarding rights in intellectual property and their contractual protection, the lawyers at MTR Legal Rechtsanwälte are available as competent contacts.
