Unfortunately, it happens again and again when it comes to copyright attribution: you find a great photo from a stock provider, put it on your website and then a short time later you get a warning letter. You rub your eyes in amazement and ask yourself what you have done wrong. Perhaps you should have read the licence conditions?
That’s probably what happened to the defendant in this case, which even went all the way to the Federal Court of Justice. However, the BGH ruled in favour of the defendant, allowing him to use the photo without naming the author.
So if there is something in the GTC that you don’t have to expect and that puts you at an excessive disadvantage, this is invalid according to § 307 BGB. Even though you have accepted it. The provision is intended to protect against something totally unfair being foisted on you in the T&Cs.
In our case, however, the court did not see this unreasonable disadvantage. The photographer received an (albeit small) financial contribution for the use, which compensated him for the omission of the naming. From this perspective, the business model was fair and the photographer had effectively waived his right to be named in accordance with Section 13 UrhG. Consequence: The user did not have to name the photographer as the author.
BGH judgement from 15.6.2023 – I ZR 179/22