In a recently published decision, the Federal Court of Justice (BGH) dealt with the question of when artists who distribute their images via microstock portals cannot assert their copyright.
Initial situation
In a case on which the decision of 15 June 2023 (case no. I ZR 179/22) is based, the plaintiff professional photographer had not marketed his photographs via individual licenses, but via microstock portals. According to the BGH, these are portals that allow their customers to use photographs for low license fees. The aim of marketing via microstock portals is to achieve a wide reach through this type of distribution, which is why it is lucrative even for professional photographers to grant license rights to their works at very low license fees in individual cases. Due to the high reach – according to the BGH – the copyright holder can still obtain an appropriate license fee in the sum of all license sales and also avoid the time and financial expenditure associated with independent marketing.
The contract between the photographer and the platform stipulated, among other things, that customers could decide for themselves whether or not to mention the photographer by name when using the photographs. In addition, the photographer was also allowed to distribute his images in other ways and the contract could be terminated by the photographer at any time.
On this basis, the defendant downloaded images from the microstock portal and used them without naming the photographer as the author.
The plaintiff photographer saw this as an infringement of his right to be named as the author and demanded an injunction, damages and compensation for the costs of the warning.
Solution of the BGH
Like the two previous instances, the BGH dismissed the photographer’s claim as he had effectively waived his rights.
In this respect, the BGH first emphasizes that the author’s right to be named with his work is indispensable. Nevertheless, he can waive the exercise of this right or consent to impairing uses. This only requires a contractual agreement in which this waiver or consent can be agreed – even tacitly.
From a legal point of view, such agreements are subject to the limits of morality pursuant to Section 138 (1) BGB and the general control of general terms and conditions pursuant to Section 307 (1) and (2) BGB. Whether these are violated must be determined by weighing up the interests of the author – in this case the photographer – and the contractual partner – in this case the microstock platform – as a whole. Key factors here are “the respective circumstances relevant to the contract, such as the type of work and the purpose and duration of the agreement”.
After weighing up these aspects, the BGH came to the conclusion that the corresponding contractual agreements did not unreasonably disadvantage the author and were therefore valid. The plaintiff had decided to market the microstock portal of his own free will, as he was using the portal voluntarily and in his own interest. By doing so, he secured sufficient remuneration and avoided the time and financial expenditure associated with independent marketing. In addition, the BGH also confirmed the business model of the portal to the effect that its attractiveness lies precisely in the fact that users do not have to clarify with each author whether they want to be named or not. This is how the portal achieves its wide reach and generates the desired license fees. This benefits the author, whose images are licensed more frequently as a result.
In this respect, the BGH also focuses on the specific contract design: the photographer does not waive his copyright per se and definitively, but only vis-à-vis the microstock platform and its customers. The photographer can terminate this waiver at any time by terminating the contract and removing his images from the platform – he can then freely dispose of his right to be named as the author again.
Practical tips
The ruling of the BGH is to be welcomed, as it creates legal clarity for the parties involved:
Authors must be aware that they are giving up an elementary right when they use microstock portals and their advantages. They are well advised to check the portal contracts carefully.
Microstock portal operators, on the other hand, will have to ensure that their terms and conditions with the authors are clearly and transparently formulated and that the authors do not definitively waive their right to be named, as otherwise there is a risk of liability on the part of the end customer. In particular, this means that authors must be able to withdraw from the contract easily and within a short period of time.
Customers and users of the works are, in turn, dependent on the microstock portal operators to provide them with the most extensive possible rights of use in order to use the works in the desired manner – namely without naming the author. If this mediation fails because the contract between the portal and the author is already invalid, the customer cannot invoke this per se according to case law. In such cases, however, recourse claims against the portal operator can be considered.
The author and your usual contacts will be happy to answer any questions you may have!
Patrick J. Kaatz
kaatz@tigges.legal
+49 211 8687 165