16. November 2023

Waiver of author attribution possible

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.

The special feature of the case actually lies in the terms of use of the stock provider, according to which users “have the right but not the obligation to identify the uploading member as the source of their works.” In other words, users can decide whether or not they wish to acknowledge the author. Photographers also agree to this condition when uploading their photos.

So if the terms and conditions of use state that the copyright can be waived, how did the photographer come up with the idea of suing? Quite simply: The photographer is of the opinion that the terms of use are invalid because they unreasonably disadvantage him. The relevant provision can be found in Section 307 BGB. This provision states that general terms and conditions (and the terms of use are considered as such) may not unreasonably disadvantage the parties. This even applies if you click on the famous “read & accepted” box. Because nobody reads the T&Cs in detail. Except perhaps a few masochistic lawyers.

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

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