Time and again (professional) photographers come to see us as they have become victims of picture theft on the Internet. They found that e.g. photographs published on their own website in their portfolio were also made publicly accessible to third parties. Even if this may be a compliment for the pictures taken, such independent actions by third parties is a source of concern for photographers. They feel robbed of their work, in particular in cases where their pictures are used for commercial purposes on third-party websites. By publishing pictures in this way, users take advantage of the costly work of photographers without first obtaining rights of use for a fee.
In practice, we frequently see that the users of third-party pictures are often not clear about the violation of a copyright. In many cases, it is falsely assumed that third-party pictures, e.g. on the Internet, may be used without the consent of and without naming the copyright holder. This incorrect belief does not protect from action being taken after the fact. The legal position is clear in this regard and is unequivocally in favour of photographers and copyright holders.
What can photographers do to protect against picture theft?
As soon as you notice that third parties have made your pictures publicly accessible, duplicated or distributed them, your copyright has been violated. As a photographer, this violation entitles you to take action against the user of your pictures. It is reasonable to immediately consult an attorney to assert your claims in the event of a copyright violation. You therefore do not have to first write to the violator and notify them of their unjustified use of your picture. Save yourself the time and expense and place this step directly in the hands of professionals.
What is the process attorneys follow in the event of copyright violations?
If you engage us to assist you with your copyright violations, we will first professionally document all the violations. We will then issue the violator with a written warning out-of-court and request a cease-and-desist declaration. The law expressly provides for this process. The violated party should give the violator the opportunity of settling the dispute by issuing a cease-and-desist declaration coupled with an appropriate contractual penalty (Section 97a UrhG) and avoid court proceedings.
We generally request the following from the violator in the context of the written warning:
- To immediately cease the infringement (if applicable, also the immediate destruction of visual material)
- To issue a pre-formulated cease-and-desist declaration and declaration of obligations including a contractual penalty.
- Information regarding the specific extent of the infringement.
- Payment of damages for the unauthorised use of your (photographic) works.
- Reimbursement of expenses in the form of legal costs arising for pursuing the infringement of rights.
In most cases – after consultation of an attorney – a (modified) cease-and-desist declaration and declaration of obligations is submitted by the violator. The other claims are often also successful without a court proceeding.
However, if no cease-and-desist declaration and declaration of obligations is submitted, the cease-and-desist order is asserted either in injunction proceedings or all the claims are asserted as a whole by means of a lawsuit.
In particular for undisputed and obvious copyright violations, judicial clarification is an expensive affair for the violator. This is in particular due to the fact that amounts in dispute can quickly become high. For copyright violations of professional photographic works, a general amount in dispute can be assessed at up to € 6,000.00 per picture. The court and attorney fees are determined according to this amount in dispute.
How exactly are the damages calculated?
In total, there are three different possibilities for calculating damages for the copyright holder/photographer. However, only one of these three possibilities is the most relevant in practice.
- Firstly, the damages arising can be calculated very specifically. However, this will be more difficult for the unauthorised use of a picture.
- In addition, foregone profits can also be asserted as damages. In practice, however, it has proven to be difficult to quantify profits foregone and is seldom successful.
- The most common method for calculating profits foregone is the so-called license analogy method. In this calculation, the amount payable to the copyright holder/photographer is the amount that would have been payable if the parties had concluded a licence agreement in advance. These licensing fees can be found in the so-called MFM table. The MFM (Mittelstandsgemeinschaft Foto-Marketing) annually sets the fees applicable to photo usage in Germany. The fees set are then summarised and published as a brochure under the title “Fee rates”. Our law firm always uses the latest version of the brochure to calculate your notional licensing fee.
The calculation takes all the relevant aspects into account. According to established case law, merely omitting to mention the copyright in a commercially used picture justifies a flat-rate surcharge of 100% on the damage claim. It can therefore be worthwhile for the copyright holder/photographer to take action against the violator and consistently assert their copyrights.
Law firm Jansen & Jansen will assist you in copyright violations as a competent advisor and specialist in photography law. We will advise you the correct way to proceed and assist you in enforcing your many rights. Based on our expertise, we can realistically assess your chances of success and provide you with the best advice.