The term junk stock is copyrighted
Received a warning about image usage - what to do?
Have you received a warning from Getty Images, Corbis or another photo agency? Are there any suspicions that you may have used copyrighted photos or images on your website? Read here about photo and image rights, copyright and warnings or contact us directly so that we can advise you.
Have you received a warning about unlicensed reproduction and making protected image material publicly available? You should respond within a very short period of time and sign a declaration of cease and desist with penalties. The legal statements of the warning lawyers are often deliberately not helpful and formulated in a cumbersome manner. In this stressful situation, we want to answer your most important questions. You will also receive an overview of the costs that you may have to face. This gives you the tools you need to make a rational decision in this uncomfortable situation. In any case, we advise you to get professional support. You are welcome to use our free initial consultation.
What is a warning?
The warning is a notification that a legal violation has occurred, combined with the request to remedy the legal violation and to refrain from it in the future. The warning is usually in the form of a letter (warning letter) from the warning lawyers of the rights holder. The warning can be sent as a simple letter by post, but also as a fax, e-mail or telephone. In addition to the description of the copyright infringement committed and a legal instruction about the consequences, the warning also contains the actual comparison offer.
In addition, the person warned is requested to remedy the legal violation and to provide information about the unauthorized use of the image.
A typical feature of the warning is the setting of a deadline by the law firm issuing the warning. The admonished will be one Deadline set both for the submission of the cease and desist declaration and for the payment of the lump sum. These deadlines are usually very short (usually 1 - 2 weeks). This makes it more difficult for the warned person to calmly inform himself carefully and obtain legal advice. Unfortunately, the short deadlines are recognized by the courts as permissible.
It is often believed that the warning is ineffective because it is not accompanied by a power of attorney from the client (rights holder). However, this is not true. The warning is also valid without a power of attorney and develops its legal effects.
The warning is initially a out of court proceedings. This is in the interests of both parties involved, i.e. the person giving the warning and the person being warned.
While the former can enforce his claim quickly and inexpensively, the warning gives the debtor the opportunity to be made aware of his possible legal violation and to be able to avert legal proceedings himself by submitting a cease and desist declaration. In this respect, the warning has a warning function and a dispute resolution function.
In addition, it is the purpose of a warning to settle legal disputes due to the violation of rights inexpensively in an out-of-court procedure. Many will probably be bothered by the term “inexpensive”. Because the costs incurred by such a warning are usually between a few hundred and several thousand euros.
In this case, the term inexpensive means that an agreement without the involvement of the court is usually more favorable for all parties involved, since additional legal and court costs are added to a court case.
Whether on Instagram, Facebook, Twitter, Snapchat or anywhere else: Today, social media plays an extremely important role for almost every one of us. It is posted, liked, shared and commented on. Millions of photos find their way onto the internet every day. Unfortunately, very few people worry about possible copyrights - until the warning ends up in the mailbox.
The fact that the risk of a warning is real and can really affect anyone is shown by the numerous affected users, whom we provide legal advice on a daily basis.
My tip: Do not sign anything that has not been checked and do not under any circumstances pay too high amounts of money too quickly. Keep calm and get expert assistance.
With our many years of experience, we are always at your disposal. Nationwide!Thomas Burgemeister, lawyer in copyright law at WILDE BEUGER SOLMECKE
What is the accusation and what does it mean?
You are accused of a copyright infringement. This is the case if you have used a picture protected by copyright without the prior consent of the author or rights holder. In other words, you are accused of unauthorized image use.
But when does an image enjoy copyright protection? And what actions can violate copyrights?
When is a photo protected by copyright?
To anticipate the result: As a rule, every photograph is subject to copyright.
Photographs are comprehensive as so-called. Photographic works (Section 2 Paragraph 1 No. 5 UrhG) or as a so-called. Photographs (§ 72 UrhG) protects against copyright. The differentiation between photographic work and photograph depends on how creative and artistic the photo is. Photographic works within the meaning of § 2 UrhG must show a certain creative, i.e. creative-artistic achievement of the photographer. An example would be an elaborate portrait photo that is made in a studio. Photographs, on the other hand, can be less original. Every photograph, i.e. the purely technical achievement of the photographer, is considered a photograph. Thus, every cell phone picture is also a photograph and is therefore subject to copyright.
Regardless of the delimitation, the rights holder is entitled to the same rights and claims in both cases. The demarcation becomes relevant when it comes to how long the work has copyright protection. In addition, unauthorized use of a photographic work can be more expensive than in the case of a photograph.
The Copyright arises "automatically" with production of the work. Entry or registration is not required for this. Well-known copyright notices © only refer to the existing copyright protection, but do not establish any further rights.
Originator is the manufacturer (in the words of the law: the creator) of the work, i.e. the photographer himself. The photographer can therefore decide how far his work may be used and exploited. Because with the creation of the work, various rights of the author arise - both ideal and commercially exploitable rights of use or exploitation. The latter are intended to secure the author's economic interest in the use of his work. This includes, for example, the right to reproduce, distribute, display, demonstrate or make it publicly available on the Internet. The latter describes the use of the image on a website.
So if you use someone else's photo for your own website, you usually violate the rights of the author, more precisely: the right to make it publicly available. Use would only be permitted if one can invoke a so-called limitation regulation such as the right to quote, the work is in the public domain or one has a license, i.e. permission from the author, to use the image. It is therefore completely irrelevant where you found the picture.
Even if it is technically so easy nowadays to save a photo that has been found to be good and upload it again yourself, the following applies: Just because an image was found via a Google search, the image cannot be freely used. At first it doesn't matter whether you are pursuing commercial interests with the picture or just want to decorate your private blog.
In each individual case, it is necessary to examine exactly which uses the author has made available to third parties - if at all.
When can I legally use a photo?
The rights of use associated with copyright are therefore initially all of the Originator even to. In principle, he can decide to what extent to transfer rights of use to whom in the form of licenses or not.
But there are exceptions to this in the law: There are statutory ones Limitations of Copyrightwhich limit the rights of the author. Copyright protection is limited in terms of time. However, the law also provides for restrictions that are intended to enable a social discussion of the work. The legislature gives higher weight to individual interests of the general public that are worthy of protection than to those of the author himself.
Expiry of the term of protection
A first limitation applies in terms of time. Because copyright does not apply forever, it expires seventy years after the death of the author, § 64 UrhG. Artistic photos with a high level of individual design, i.e. photographic works, can therefore be used freely seventy years after the photographer's death. As already mentioned, the protection period for photographs (§ 72 UrhG) is shorter: This is fifty years. If these deadlines have expired, the work is no longer protected by copyright - the work is now public domain. Accordingly, you no longer need the consent of the author to use them and you can use the works as you wish, free of charge.
Picture quote, § 51 UrhG
In order to promote science and research - and ultimately to realize freedom of expression - copyright allows the Freedom of quotation. The work can be used freely, provided that the type and scope of use serve the particular purpose of the quotation. It is important that a quote only has one Receipt function is due, i.e. it only serves to support one's own independent work. Simply copying with reference to the source is not sufficient to enjoy the freedom to cite (even if the reference is an important prerequisite for citing). The quote can never stand alone, but must be incorporated into an independent work. Thus there are three basic requirements for a valid quote: it must be in a independent work be taken over, the special one Citation purpose serve and feel in required scope move.
Correct quotation must therefore be learned: If one does not adhere to the conditions under which the law declares the use of the copyrighted work for one's own purposes permissible, then there is a copyright infringement.
In case of Image quotes, i.e. the transfer of photographic works or photographs to a new, independent work, the requirements to be met are high and complicated. Because, in contrast to a text quote, you don't just take passages, but an entire photo and thus the entire work. This higher burden on the author goes hand in hand with higher demands on the quotation. The limits of what is permitted are quickly reached. Therefore, an appeal to the right to quote is rarely successful.
Anyone who wants to invoke the right to quote must explain that quoting is precisely this special photo was necessary. He will not be able to provide this evidence for motifs that have been photographed thousands of times (e.g. sights), since any picture can be used here and it does not have to be a special photo. If in doubt, he could take the photo himself, choose an alternative image or just acquire the rights of use (licenses).
The adoption of pictures as so-called picture quotations is only possible within narrow limits and harbors dangerous pitfalls that lie in the detail. As a rule, the reference to a picture quote does not provide relief.
Permission from the rights holder
If there is no legal exception, you have to deal with the author about the use of the image. The author can grant a third party certain rights of use usually for money grant in an individual contract. This enables the photographer to use his pictures economically. The copyright itself is not transferable.
- Usage rights are in common usage as Licenses known and represent the economic side of the intellectual property rights of others. These licenses can be transferred by the author as the owner of the rights (licensor) in accordance with § 31 UrhG with a license agreement to the later user (licensee) for certain types of use and thus the economic use of the Allow work. In order to grant usage rights to a photo, the photographer, as the author, concludes a contract with the user (e.g. picture agencies, publishers or private individuals).
These usage licenses are often limited in terms of their temporal or regional validity or their type and scope. The right holder of a photo decides who is allowed to use the photo where, how and to what extent and who is not. A distinction is made in § 31 UrhG between the granting of simple and exclusive rights of use. In the case of the simple right of use, the owner is only allowed a certain use. In contrast, the owner of an exclusive right of use can exclude third parties from using it and, if necessary, grant another contractually right of use. The type and scope of the transferred rights of use result from the contract in each individual case.
- One way of foreign works lawful and free of charge to use, lies in so-called. Creative Commons licenses. These are an alternative to conventional license systems. The idea behind this is to make the sometimes very complex copyright law more understandable and easier to handle for the general public. Users then only have to comply with the conditions of the CC license and neither contact a collecting society, nor the author himself, nor negotiate an individual contract. However, it is particularly important here to strictly adhere to the legal framework. This means that you especially have to name the author and link to the license. Anyone who makes mistakes here is still committing a copyright infringement and can be warned. The images are available under various CC license models and are provided with the appropriate symbols by the author. The symbols tell users how they are allowed to use the work. You have to pay particular attention to whether the author agrees to the editing or commercial use of his videos. In practice, this means the following: If the photo is allowed to be used for your own purposes, you must first name the author. In addition, the specific license must be specified and a link to the text of the appropriate license agreement must be placed on the license name. If this is permitted according to the license conditions, this also includes information as to whether the image has been changed. In the end, the whole thing looks like this, for example: "Max Mustermann, cut and scaled by XY, CC-BY-SA 2.0 de".
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Rights holder claims
If none of the above-mentioned options for lawful use exist, you have violated the rights of the author or of the person who has been granted the corresponding rights of use. The author or the rights holder can defend themselves against this copyright infringement. The author can claim against the injuring party for removal, omission, compensation as well as destruction or information. Since the liability is largely independent of fault (except for damages), these claims even apply regardless of whether the infringer was aware of the illegality of his action or not. So good faith doesn't help here.
The requirements in detail:
The rights holder can request that the copyright infringement be eliminated, i.e. that the image be removed.
The rights holder can demand that future legal violations be avoided. This is the core of the warning. The declaration of cease and desist is punishable, i.e. one undertakes to pay a contractual penalty in the event of a violation.
According to § 97 UrhG, the infringer is obliged to compensate the author for the damage caused by the unauthorized use of the images. This claim is fault-based, i.e. the injuring party must Willful misconduct or negligence to be blamed. Negligence describes the failure to take due care. Here it boils down to the question of whether the admonished person could have recognized that he was not authorized to use the photos.
The demands on the care of the individual are high here: Anyone who wants to use a third-party copyrighted work must be certain of the existence of the protection as well as the scope of the usage authorization. The chain of individual legal transfers must always be checked in full. With assurances from third parties that the necessary rights are available, you cannot exonerate yourself. Rather, it is your own responsibility. Special features can arise if, for example, an agency has been commissioned.
Then, in the event of a dispute, it must be clarified who was obliged to take care of the image rights. In the case of stock archive images or images with Creative Commons images, anyone who does not follow the license conditions or terms and conditions or forgets to identify the author is also negligent.
How much can the rights holder claim for damages?
The injured rights holder can calculate the amount of the asserted damages in three ways, between which the rights holder can freely choose:
- Either he does his specific damage occurred valid. However, this must be precisely quantified, which will usually be difficult.
- In addition, according to Section 97 (2) sentence 2 of the Copyright Act (UrhG), the The infringer's profit demanded become. However, this must also be precisely numbered.
- Most often, the damage is caused by the so-called License analogy calculated. The payment of an appropriate license fee is then asserted, Section 97 (2) sentence 3 UrhG. Here it is fictitiously calculated what would have had to be paid to the rights holder for the use of the photo in order to acquire a license.
How do you know what is appropriate in the context of a license analogy in each individual case?
The judge must determine the amount of the appropriate license fee, taking into account the particular circumstances of the individual case, according to his own conviction, see Section 287 of the Code of Civil Procedure (ZPO). Accordingly, the author can present the licenses that have actually been agreed or prove his own previous contractual practice. Since this only happens in the rarest of cases, when setting an appropriate license fee, it makes sense to use industry-standard remuneration rates and tariffs as a benchmark if such an exercise has developed in the relevant period. This is what the highest court rulings do (BGH, ruling of October 6, 2005, Az. I ZR 266/02 - press photos).
If - as is often the case - no contractual practice or other comparative values can be determined, the courts usually resort to the Fee recommendations of the Mittelstandsgemeinschaft Foto-Marketing (MFM recommendations). The MFM recommendations are the result of a survey of photographers, agencies and other professional image users with the aim of determining an industry standard remuneration.
If the picture arrangements are particularly complex, the fictitious license fee can also be calculated using the Fee recommendations from VG Bild und Kunst Recourse can be taken (AG Düsseldorf, ruling of October 6, 2010).
However, the case law is only based on these recommendations. Under no circumstances do they replace the judge's assessment of the facts in individual cases. The calculation of the damages by the court initially has nothing to do with a schematic application of any remuneration recommendations. The case law has also recognized that these one-sided remuneration concepts of an interest group of photographers can only serve as a guide.
The MFM recommendations assume that both the photographer and the person who wants to use the images acted in the context of their commercial activities. That is why their applicability is controversial. As a basis for the damage assessment, case law then resorts to the MFM recommendations when the use not in a purely private context takes place and the picture of one Professional photographers originates or qualitatively close to that of professional photography. After all, the calculation basis is based on tariffs for professional photographers and commercial license costs. For the application, the image must meet the qualitative requirements for individual creative performance in photographic works. The decisive factor is not the professional qualification as a photographer, but the quality of the photos.
A special case arises with Creative Commons licenses in cases in which non-commercial use is released. Since the picture was released for non-commercial use, the OLG Cologne decided that the objective value of the use was therefore 0 € (OLG Cologne, ruling of October 31, 2014, Az. 6 U 60/14). Accordingly, the right holder is not entitled to payment of fictitious license fees if an image released under a Creative Commons license is not used in accordance with the license. Payment of the so-called infringer surcharge (discussed below) due to the lack of naming the author is also ruled out in these cases (OLG Cologne, decision of June 29, 2016, Az. 6 W 72/16).
The surcharge due to the lack of an author's name
The amount determined according to the license analogy can increase by 100% if the author is not named. The author is also protected in his ideal relationship to his work - one speaks of his moral right. According to § 13 UrhG, he can determine whether he gives his work an author's designation in order to make his authorship externally recognizable.
If the copyright notice is missing, the case law recognizes a surcharge in order to allow the author additional financial compensation. This payment claim is also known as the infringer surcharge. There is no established case law on the appropriate amount of this infringer surcharge. In any case, if professionally produced photos are used commercially without authorization, this surcharge is usually 100%. The fictitious license fee is thus doubled.
In summary, it can be stated that it always depends on the individual case. The amount of compensation depends on many factors that a judge has to consider. Consider the duration of the unauthorized use, how and where and in what context the photo is used, how many people were able to access the unauthorized image, how large the image was displayed on the website or to what extent Conditions the image was licensed.
What costs can you expect?
This article cannot provide a complete list of all possible costs. Here, the deviations in individual cases are too great for general statements to help you. However, the costs consist of three items:
- In the first place come the Costs of the attorney issuing the warning. These are based on the so-called. Objective value of the procedure. This is measured according to the value of an omission of copyright infringement in the future. As with the license analogy, this boils down to an estimate.
- In the event that you are at fault, the second cost factor is Claim for damages to carry. As stated above, this is usually calculated according to the principles of license analogy.
- If you have a Lawyer entrusted with the matter, its costs are added as a third item. These vary, but can be bindingly requested.
How should you react to the warning?
Finally, we would like to show you what to do when you receive a warning and what it is better not to do.
It was already said at the beginning - but the first commandment is don't panic to expire. At the same time you should receive the warning do not ignore. It is neither a "fake" and the matter will not resolve itself simply by waiting: In case of doubt, the amount of the pecuniary claim is also based on the duration of the unauthorized use. That means the longer you do nothing, the higher the demand can become. In addition, if the person issuing the warning does not receive an answer from you, he will usually take legal action against you and apply for an injunction against you. This is not in your best interest as it can significantly increase the costs of the litigation.
Unfortunately, time is not playing for you, but against you. So act within the set deadline!
Nevertheless, it is important to keep a cool head. The payment claims asserted in the warning are, as described above, mostly set too high or described imprecisely and are based on estimated values. The opposing lawyer is usually aware of this. However, he is obliged to use all legal options to get the best result for his client. That's why it's not advisable to contact the law firm that issued the warning: An exception applies if you can easily provide evidence of a corresponding license for the disputed use of the image. There is a high risk that you will provide information on the matter that can later be interpreted negatively. So take advantage of our free initial consultation and get professional support at an early stage.
The pre-formulated cease and desist declaration is mostly too extensive: You commit yourself for life and often recognize the most favorable result for the other side by committing yourself to the fulfillment of all asserted claims. In addition, you agree to a contractual penalty in the event that the copyright infringement is repeated. You are not legally obliged to sign the attached cease and desist declaration. You should not sign the attached declaration of cease and desist without being checked!
It is also not advisable to use the attached cease and desist declaration to modify without authorization. Corresponding templates can be found on the Internet. It is true that claims for damages and the required legal fees can be excessive and are therefore open to attack. However, the scope and amount of the obligation can only be reduced to the legally recognized minimum. Every formulation and knowledge of the legal matter and the associated case law are important here. If you change the cease and desist declaration too drastically, the other side can apply for an injunction against you. This increases the cost of the litigation.
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