Dispute over digital secondary exploitation rights

Photographers’ association FreeLens was successful against SPIEGEL

In 1997, the photojournalists’ association FreeLens had sued SPIEGEL on behalf of members for republishing photos on CD-ROMs published year by year and sold at a stucco price of 150 marks, bypassing second-use rights, i.e. without paying royalties. SPIEGEL had refused to pay additional fees to the photographers for it.

In 1997, the Hamburg Regional Court rejected the complaint, because the user, i.e. SPIEGEL, could decide in favor of new technologies such as CD-ROMs without having to clarify copyright ies beforehand. The fact that there was no express written agreement between SPIEGEL and the photographers on the transfer of rights of use spoke in favor of the defendant.

After FreeLens then before the higher regional court had pulled, this lifted on 5.11. The court overturned the decision of the regional court and, in its landmark ruling, declared the action for damages to be justified. SPIEGEL is forbidden to further distribute the pictures of 64 photographers published on the CD-ROMs of the years 1989 to 1993. A decision on how much to pay for damages has not yet been made. FreeLens demands 20 marks per photo.

According to the FreeLens press release, the court held that the right to publish photographs in a magazine does not include the right to transfer them to CD-ROMs. Compared to newspapers, CD-ROMs are a self-contained mode of use that has faster searching, easier handling and no wear and tear. The photographers had neither tacitly nor explicitly granted SPIEGEL the right to use the CD-ROM version.

"The verdict", said Christoph Engel, chairman of FreeLens, "is a clear signal, especially to the booming multi-media industry, which was all too happy to help itself to the work of creative people free of charge." The same is true of the digital republication of journalistic articles. If contracts are concluded at all between freelance journalists and exploiters, they usually include the transfer of all possible rights of use. So journalists should take care to clearly regulate further usage rights.

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