If someone has stolen and used your photo, compensation depends on two crucial factors: Whether you are a professional photographer and exactly how the photo is used.
Stolen photo – amount of damages
The legal basis for damages is Section 97 UrhG. In addition to damages, the author also has a right to injunctive relief. He can therefore prohibit the use of the photo. You can find further legal information on photo law in the encyclopaedia.
Photo damages for professional photographers
Professional photographers generally have an easier time enforcing higher amounts of compensation for photographic damage. This is due to the calculation method of the so-called “licence analogy”. This is one of several calculation methods that are often used in practice. Here, damages are calculated according to the amount of the licence that a user would normally have paid for a proper licence. It does not matter whether the infringer would have been willing to license at all.
Example of licensing
An unrestricted licence for the use of a photograph costs 500 Euros for a professional photographer. He can claim this amount if someone uses his photo without a licence. Prerequisite: Proof of regular licensing of photos is provided. This does not necessarily have to relate to the photo in question. This is usually not a problem for professional photographers.
MfM table for photo damages
An alternative for professionals is the so-called “MfM table” of the Mittelstandsgemeinschaft Foto-Marketing . This organisation regularly determines the current fees for photo use in Germany and publishes them under the title “Bildhonorare”.
Example:
According to this, the use of a photo on a homepage (home page) costs 195 euros for one month, 294 euros for three months and 374 euros for six months (as of 2021). In addition, there are various surcharges.
Professional photographers can claim these amounts. However, the MfM table is no guarantee. In some cases, courts award less. Reason: the MfM rates are said to be excessive (OLG Hamm, judgement of 17.11.2015, ref. 4 U 34/15).
Quality of the photo, type and duration of use
Basically, the amount of damages depends on the quality of the photo and the type and duration of use. For example, the MfM amounts for use on the homepage of a website are higher than for use on a subpage. The current MfM image fees can provide precise information.
Infringer’s surcharge
According to established case law, professional photographers can also claim a so-called “infringer’s surcharge” (see BGH, judgement of 15 January 2015 – I ZR 148/13). This amounts to 100% of the notional licence fee if the photographer is not named as the author when the image is used. Justification: By not naming the photographer as the author, the advertising effect is lost. This leads to pecuniary loss if the author loses follow-up orders as a result.
Damages for non-professionals
When assessing damages, a non-professional has a more difficult time. If he does not license photos to third parties, he simply cannot provide proof within the framework of the licence analogy. The courts are also becoming more cautious in applying the MfM table. Reason: These are rates of professional photographers that are not transferable to amateurs.
One consequence: the courts estimate “at their own discretion” what one would pay an amateur for a photo licence. The amounts vary per photo between 20 euros (AG Düsseldorf, judgement of 08.08.2014, ref.: 57 C 3783/14) and 100 euros (BGH, judgement of 13.09.2018, ref.: I ZR 187/17).
Alternatively, the MfM tariffs are simply reduced in the licence calculation for amateurs. The reductions range from 20% (LG Köln, judgement of 24.08.2017, ref.: 14 O 111/16) to 60% (OLG Hamm, judgement of 13.02.2014, ref.: 22 U 98/13).
If you have questions about photo law or other topics, I will be happy to advise you. It is not necessary for you to come to my office. You can send me your request in advance by email (also with attachments). I will then make you a non-binding offer for a mandate and, if necessary, contact you by telephone. A mandate only comes into effect when the mandate is issued in writing.
