Compensation for missing/incorrect attribution of photos?

For a while, but at the moment it has been a lot of time, there is a quite “trick” behavior of some hobby photographers to generate by sometimes legal warnings of fee income. Thus, photographs, which are in principle protected by German copyright also for hobby photographers, are offered free of charge on various stock image platforms, however, partly more, partly less hidden the condition that relatively strange attributions, often called attribution. Such attribution can be violated all too quickly, and quite unintentionally. Violation of the then logically available Creative Commons license, in whatever version, leads to fee claims or even legal letters from the respective photographer and their exploitation agency.

However, it is questionable to what extent such a claim has been made at all; and if so, at what height. In order to justify the extreme amount of their own claims, they then usually refer to the fee recommendations of the Mittelstandsgemeinschaft Foto-Marketing (MFM), which the Cologne Higher Regional Court recently deemed to be generally applicable to professional photographers, but which the Federal Court of Justice has only just rejected for amateur photographers. The Association for the Protection of Intellectual Property on the Internet (VSGE) also adds allegedly incurred legal fees to the claim.

Often, therefore, these demands are unfounded. The reason for this is that the person claiming damage must prove that such damage actually exists. But this should be difficult on a regular basis if you have done so beforehand – yourself! – provided the image free of charge, often even expressly for commercial use. The latter must, of course, be proven by the user, which is why it is advisable to always document the source.

However, since there could still be a copyright infringement in the event of incorrect or lack of attribution, it is a good idea not to ignore any claims, but to issue a sufficient and legally audited declaration of injunction as a precautionary measure. . After the fee, at least a fee-based legal warning is no longer possible and the other letter of claim cannot be turned into money. Unfortunately, of course, the appointment of a lawyer costs money. Better, however, than having to fend off claims in the often four-digit range in the end.

Whether the costs for one’s own lawyer can now be replaced is very controversial. While claims for compensation for lawyers are provided for unjustified warnings in Section 97a IV UrhG, the sending of claims is legally unregulated. However, there are initial court decisions which also accept claims for compensation if the consignor could obviously assume that there were no claims or if he had to assume them. A negative declaratory action against the photographer is also possible in principle. So if you have a little courage to leave the matter to a colleague who is well versed in copyright law, you can fend off this trick in a cost-neutral way.

But please do not ignore the letters, but act quickly!

Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.