Images are protected by copyright

FAQ about photo usage on the Internet

First a note: Received mail from the lawyer and received a warning? Call us, we will advise you immediately!

A picture is worth a thousand words. Therefore, almost nothing works on the Internet without photos. However, when photos are used online, there are considerable uncertainties about what is permissible and what is not. In addition, mistakes or ignorance can be very expensive. Because some photographers follow the use of their pictures very actively and demand dizzying compensation amounts in the event of injury: A picture of a hamburger or a rhubarb muffin from Marion's cookbook can quickly cost around 1,000 euros. Or it turns out that the photo used actually comes from Getty Images, which supposedly license it for around 1,450.00 euros. Therefore, the topmost principle in photo law is:

Stay away from strange photos!

In the following, we want to briefly answer frequently asked questions in connection with the use of photos on the Internet. You can also find more information in our great FAQ on Copyright.

  1. Are all photographs legally protected?
  2. How long are photographs protected?
  3. Does copyright also apply to private individuals?
  4. The photo did not have a copyright notice. Can I then use the photo freely?
  5. Can I change someone else's photo and then use it for my own purposes? It is then a “different” picture.
  6. I used someone else's photo on an eBay auction, but I didn't make a profit on the auction. Do I still have to pay compensation?
  7. I have purchased a (branded) product and would now like to sell it again on eBay. Can I use a manufacturer's photo for the auction?
  8. I have received a warning. How much compensation do I have to pay?
  9. What is the purpose of a cease and desist declaration?
  10. Doesn't a “new law” say that warnings against private individuals can only claim 50.00 euros in damages?

1. Are all photographs legally protected?

Yes, photos of any kind are protected by copyright, whether art photos, vacation photos, everyday family photos, product photos or snapshots - if made by human hands - are all protected by copyright.

Particularly creative photos can be called Photographic works be protected within the meaning of Section 2 Paragraph 1 No. 5 of the Copyright Act (UrhG). All others are photos are as Photographs covered by copyright protection according to § 72 UrhG. The distinction mainly affects the duration of protection - see question 2.

Danger: The individual (still) images from films, music videos or live TV broadcasts are also protected as photographs.

2. How long are photographs protected?

The property right for photographs expires 50 years after the first publication. Photographic works, on the other hand, are protected up to 70 years after the death of the author.

3. Does copyright also apply to private individuals?

Yes. Copyright applies equally to private individuals and businesses. Therefore, the use of someone else's photo in a private eBay auction can result in a fee-based warning.

4. There was no copyright notice attached to the photo. Can I then use the photo freely?

No. Even if there is no copyright notice on the photo or - as it is called in German law - no copyright notice, this in no way means that the picture is not protected by copyright and may be freely used by anyone. Because unlike trademark law, for example, the copyright does not have to be registered or identified on a work. The copyright arises automatically with the completion of the work, i.e. in the case of a photo immediately after pressing the shutter release button. A photo is therefore always covered by the copyright law, even if it is not indicated by whom it was taken or to whom the rights to it belong.

You can find more information on this in our article: What is the point of a copyright notice?

5. Can I change someone else's photo and then use it for my own purposes? It is then a “different” picture.

No, as there is a general prohibition of changes in copyright law. Edits or other redesigns of a work protected by copyright may only be published with the consent of the author or rights holder. Only if the processing or redesign of the original image reaches such an extent that the essential features of the original photo fade behind those of the newly created image, it is a so-called "free processing." From the free use an independent work arises, which without Permission of the copyright holder of the original image may be used. The question of whether the change in an image is still processing requiring approval or whether it is already free processing is a question of the individual case. However, the average editing and changing of a photo with the help of an image editing program should not lead to free use on a regular basis.

You can find more information on this in our post: Editing other people's pictures - My picture - Your picture - Our picture

6. I used someone else's photo at an eBay auction, but I did not make a profit from the auction. Do I still have to pay compensation?

That depends on how the compensation is claimed. In principle, the legislature grants the rights holder three options for calculating damage:

(1) Surrender of the specific damage incurred, including the lost profit,

(2) Surrender of the infringer's profit and

(3) Damage calculation based on the license analogy.

If damage is calculated in the warning according to one of the first two alternatives, but a profit was not made with the use of the photo, such a profit cannot be paid as compensation. However, in 99.9% of the cases, the damage calculation is based on the license analogy. According to this, the infringer has to pay what reasonable contracting parties would have agreed as an appropriate license fee if a (fictitious) license agreement had been concluded for the use of the respective photo. With this calculation method it is basically irrelevant whether a profit was made with the use of the photo or not. Accordingly, compensation would have to be paid even if the auction did not generate a profit or if the auction was terminated prematurely.

You can find detailed information in our article: Compensation in the event of copyright infringement - How is it calculated.

7. I have purchased a (branded) product and now want to sell it on eBay. Can I use a manufacturer's photo for the auction?

No, unless you have obtained the consent of the manufacturer (not the distributor!). From a copyright point of view, there is a strict distinction between the product and the product photo: just because you have bought a computer from brand A, you are far from using company A photos.

For more information, read our article: Trust is good - but writing is better - agreement on the use of photos on the Internet.

8. I have received a warning. How much compensation do I have to pay?

That depends, among other things, on how many photos there are and how long they have been used. It is also decisive whether the warning person is a professional photographer himself, or whether he is “only” the owner of the rights of use to the photo in dispute.

It also depends on how the damage is calculated. In principle, the legislature grants the rights holder three options for calculating damage:

(1) Surrender of the specific damage incurred, including the lost profit,

(2) Surrender of the infringer's profit and

(3) Damage calculation based on the license analogy.

If the warning person calculates the damage according to one of the first two alternatives, but a profit has not been made, such a profit cannot be paid as compensation. However, in 99.9% of the cases, the damage calculation is based on the license analogy. According to this, the infringer has to pay what reasonable contracting parties would have agreed as a reasonable license fee if a (fictitious) license agreement had been concluded for the use of the respective photo. It is basically irrelevant whether a profit was made with the use of the photo or not.

When determining the amount of the license fee, the fee table of the Mittelstandsgemeinschaft Fotomarketing (MFM) is used as a basis in numerous cases, which provides a certain amount as the standard market remuneration for various types of use and periods of use.

However, as mentioned, according to the license analogy, the warning letters can only demand what reasonable contracting parties would have agreed as an appropriate license. Some warning letters seem to overlook this when they demand astronomical sums for the use of their photos. It can be seriously doubted whether the operator of a German-language website would voluntarily pay 1,450.00 euros plus VAT for a photo in medium format. So the question is whether a freely negotiated contract has ever come about with the prices that some warning letters are asking.

You can find more information in our post: Damages - How is it calculated?

9. What is the purpose of a cease and desist declaration?

The purpose of a cease and desist declaration is to eliminate the risk of repetition. From the one-time illegal use of a photo, jurisprudence generally suspects the risk that the infringer will repeat this behavior. So: if you do it once, you will do it again and again. In order to effectively eliminate this risk of repetition, jurisprudence requires that the infringer undertakes in writing and with a contractual penalty promise to refrain from certain behavior in the future. The jurisprudence considers the case law to be inadequate simply by eliminating the legal infringement, for example by deleting the disputed photo from a website, or by making an oral promise to cease and desist.

Such a declaration of submission is binding for 30 years and the pre-formulated declarations are often too broad or too imprecise, which unnecessarily increases the liability of the signatory. Here it is advisable to carefully check the content of the cease and desist declaration.

10. Doesn't a “new law” state that in the event of warnings against private individuals, only 50.00 euros in damages may be claimed?

What is meant is the "Law for the Improvement of the Enforcement of Intellectual Property Rights", which is not yet in force, but is only available as a draft. The draft stipulates that in the case of warnings in "simple legal cases" private individuals can only charge legal fees of a maximum of EUR 50.00. This provision is intended to put a stop to the sometimes far exaggerated fee claims by lawyers in the event of warnings. In principle, this is to be welcomed. However, a copyright infringement on the Internet should not represent a "simply stored" legal case, which means that the planned provision will probably not apply to warnings due to the use of third-party photos. However, at this point in time - November 20076 - it remains to be seen whether and how the legislature specifies the application of the provision.

Your contact person: Attorney Elisabeth Vogt

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