© Olivier Le Moal – fotolia.com
The Higher Regional Court of Cologne has once again ruled on the requirements for a claim for licence damages by the author of a photograph in the case of the Violation of the terms of the ‘Creative Commons’ licences decided (OLG Cologne, judgement of 13 April 2018, Ref. 6 U 131/17, available here as PDF).
Copyright infringement due to non-compliance with the CC licence
The plaintiff is a photographer who offers several of his images for free use on the ‘Wikimedia’ platform. However, this use is subject to compliance with the conditions of the so-called ‘Creative Commons’ licence.
The ‘Creative Commons’ company describes itself as a non-profit organisation that provides various licensing models for authors on the Internet. With the help of such pre-formulated licences, other people can be granted rights of use to various works. In the specific case, the licence included the right to use the photo in dispute free of charge. However, this right of use was restricted, among other things, by the condition that when using the images, recognisable reference must be made to their origin and their author.
In this case, the defendant had copied a photograph of the plaintiff and incorporated it into its own website without complying with the conditions of the ‘Creative Commons’ licence. In particular, the information on the origin of the image and its author was missing.
Cologne Regional Court affirms claim for damages
Since the defendant refused to pay legal fees and Licence damages a lawsuit was filed with the Regional Court of Cologne for violation of the Copyright of the plaintiff was required. The court ordered the defendant to pay the costs and licence damages (LG Köln, judgment of 24.08.17, Ref. 14 O 336/15) and deviated from the higher court case law of the OLG Köln. This court had ruled on a similar case in 2014 (OLG Köln, Urteil v. 31.10.2014, Az. 6 U 60/14). We reported.
In the proceedings there, a photographer had also offered his photograph under a ‘Creative Commons’ licence. This licence stipulated, among other things, that the plaintiff must be named as the author and that the use must be non-commercial. Whether the latter condition was met was ultimately disputed, and the court rejected a claim for licence damages on the following grounds:
The ‘objective value’ of the non-commercial use of protected content offered under the Creative Commons licence can only be set at zero.
In the case of a photographer not being named as the author, a 100% surcharge is usually granted on the damages calculated according to the licence analogy. But 100% of 0 is still 0 […].
OLG Cologne clarifies its case law with regard to BGH
The defendant referred to this decision and appealed to the Higher Regional Court of Cologne against the judgement of the Regional Court of Cologne, which ordered him to pay damages.
In its reasons for judgement (OLG Cologne, judgement of 13 April 2018, ref. 6 U 131/17), the OLG Cologne now refers to the decision of the Federal Court of Justice ‘Ct-Paradies’ (BGH, judgement of 18 September 2014, ref. I ZR 76/13), which was also issued in 2014.
The Higher Regional Court of Cologne states that, according to the decision of the Federal Court of Justice, it is legally unobjectionable in a case such as this one (free grant of use if the link is complied with) to focus on the economic value of the advertising for the plaintiff’s website caused by the electronic link. The BGH also left the doubling of the value due to the lack of copyright attribution unchallenged.
According to all of the above, the approach approved by the Federal Court of Justice that the economic value of the advertising for the plaintiff caused by the required electronic reference could be taken as a basis and, in the absence of a mention of the author, doubling could be taken into consideration should be applied in the present case.
In the present case, however, the application of this approach did not lead to a claim for damages by the plaintiff, as he had not been able to present any evidence of his own licensing practice in the period relevant to the dispute (2012). It is true that it is not relevant for an estimate of damages under Section 287 ZPO in the context of the licence analogy whether the infringed party would have licensed at all or could have done so, as it is a fictitious licence fee. It is also not necessary for licensing to be customary, but only that the protected right is or at least could be used in an asset-rich manner.
In the specific case, however, the plaintiff had decided not to use the photograph for direct financial gain by making it available free of charge. If it is only the economic value of the advertising for the plaintiff’s website caused by a link that matters, it must be taken into account in the present case that the plaintiff did not request a link to his own website, but to the Wikimedia.org website. The advertising value for his own website caused by a link to the Wikimedia.org website was not apparent. This may be different in the case of a direct link to an offer page of the author himself, on which third parties as potential customers could come across further photographs of the author, also subject to remuneration, or on which the author – as in the case decided by the BGH – provides a commercial offer.
Although the lack of copyright attribution clearly constitutes a breach of Section 13 sentence 1 of the Copyright Act and the licence conditions and this could lead to the claimed material damages, lost follow-up orders, as the BGH presupposed in another decision ‘Motorradteile’ (BGH, judgement of 15 January 2015, case no. I ZR 148/13) for the affirmation of a claim for damages, are not apparent due to the reasons already mentioned.
Conclusion
Taking into account the case law of the Federal Court of Justice, the Higher Regional Court of Cologne has now clarified its case law on licence damages in the event of infringements of the ‘Creative Commons’ licence. Accordingly, a claim for licence damages is not fundamentally excluded because the author also offers his photographs for free use under certain conditions.
If the photographer can demonstrate that compliance with the conditions has an asset value for him, this damage must be compensated. This is the case, for example, if compliance with the conditions would have resulted in a link to his website, on which the photographs are offered for a fee. In this case, it is not far-fetched that he would have missed out on follow-up orders due to the lack of linking.
It can therefore be said that the Higher Regional Court of Cologne has opened the door that it ‘slammed shut’ in 2014 for authors who offer their photographs for free use ‘a crack wide’ again. Whether it may have applied the guidelines of the Federal Court of Justice in an exaggerated manner is another matter.
The carnival-like empirical theorem that ‘100% of 0 is still 0’ is no longer tenable.
Consequences for practice
Against the background of this case law, it is difficult for those authors and, in particular, photographers who are at the beginning of their career and therefore have no licensing practice or a longer history of orders to enforce licence damages in court. In view of the case law of the Higher Regional Court of Cologne, they must be aware that by offering the use of their photographs free of charge, they influence the basis of the damage estimate to be observed in the context of the licence analogy in accordance with Section 287 ZPO to their disadvantage.
Consistent legal prosecution with a sense of proportion
What infringers and their lawyers often overlook: Copyright infringement through unlicensed use is still fully recognised by the Higher Regional Court of Cologne. Creative Commons photographers who offer their images free of charge under certain conditions are therefore also entitled to injunctive relief and a claim for reimbursement of legal fees.
For rights holders, even those with clear legal positions, it is important to maintain a sense of proportion despite all the trouble. You don’t have to immediately ‘take out the warning stick’ against everyone and everything (e.g. private bloggers, small retailers). It is often the best advertisement for a photographer if he can reach an amicable agreement with former infringers. However, there are also cases in which a courageous defence of one’s rights is not only worthwhile, but must also be part of the strategy in order to secure property worthy of protection in the long term and create sustainable value.
(Disclosure: Our law firm represented the plaintiff.)
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