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The use of images on the Internet in violation of copyright law, especially in blogs and the like, occurs time and again. Even among people or companies that are aware of the problem in principle. Finally, the platform from which you took a stock image, for example, could have made a mistake in licensing.
In most cases, therefore, it is not disputed whether a copyright infringement has occurred, but rather how much compensation is to be paid. In the past, for an assessment of the so-called “usual remuneration”, agencies and lawyers use the so-called fee list of the Mittelstandsgemeinschaft Foto-Marketing to evaluate how much, for example, a photo would cost as a fee if this photo were used for X months on a blog, for example. Courts also usually followed such a calculation if the injured party chose the license analogy as compensation for damages. The Federal Court of Justice has now put a stop to this in a decision of 13.09.2019, if the injured party is not a professional photographer. In the decision – I ZR 187/17, the Federal Court of Justice, in the case of commercial use, considered damages of 100.00 and a value in dispute of 6,000 euros (on the basis of which the legal fees are calculated) to be quite appropriate.
If there are no remuneration rates and tariffs customary in the industry, the amount of the license fee to be paid as compensation for damages shall be assessed by the judge of fact in accordance with Section 287 of the German Code of Civil Procedure (ZPO), taking into account all the circumstances of the individual case in accordance with his free conviction. In this context, only minor requirements are to be placed on the type and scope of the bases for estimation to be provided by the aggrieved party; moreover, the trial judge has a great deal of leeway within the limits of a free discretion.
Copyright warnings for unauthorized use of simple images could now be less expensive. However, since many things can be done wrong, especially in the formulation of cease-and-desist declarations, professional advice should not be dispensed with.
Marian Härtel is a lawyer and entrepreneur specializing in copyright law, competition law and IT/IP law, with a focus on games, esports, media and blockchain.
