Photography

For photographers trademark law can be relevant, among others, where photographs are taken that display protected trademarks and these photographs are used for commercial purposes.

This applies foremost to photographs that display trademarks without the necessary permission and, especially, take advantage of the trademark’s fame or advertising value. But, even without purposefully “taking advantage”, the mere selling of the photo to a photo agency can constitute an infringement.

The action constituting the infringement is the “exploitation in the course of trade”. This term gives room for interpretation, i.e. it is not unvariably established, when an exploitation occurs in the course of trade or not. In case of a dispute this must be determined by a court for the specific case at hand. In order to prevent such a costly development, it is recommendable to have the use of photographs legally assessed by your attorney.

If you are already facing claims for trademark infringements we will develop a defense strategy with you and represent you in extrajudicial and pre-trial negotiations as well as in court.

Photographs can, per se, also be protected as a figurative trademark. Depending on the type and extent of contractual services provided for your client, the client may also like you to assume the trademark registration process regarding the photograph. This gives photographers the opportunity to offer an all inclusive service business, thereby providing a competitive advantage. In this case our services can reach from simply assessing whether the legal requirements for such a registration are met to undertaking the entire registration process for you.

Photos are generally protected by copyright law as protected works, either as photographic works pursuant to Sec. 2 para. 1 no. 5 or as simple photographs pursuant to Sec. 71 para. 1 of the Copyright Act [Urheberrechtsgesetz].
Generally the author, i.e. the photographer, is entitled to the rights regarding the protected work. The author can grant different types of exploitation rights to other parties. In general, as the author, you are entitled to the following rights:

• the publication rights pursuant to Sec. 12 of the Copyright Act
• the right of recognition of authorship pursuant to Sec. 13 of the Copyright Act
• the right of prohibition of distortion pursuant to Sec. 14 of the Copyright Act
• the right of access to copies of the protected work pursuant to Sec. 25 of the Copyright Act
• the right of resale pursuant to Sec. 26 of the Copyright Act
• the right of revocation for changed conviction pursuant to Sec. 42 of the Copyright Act.

According to Sec. 31 of the Copyright Act the author can grant the right to exploit the protected work in all or certain types of exploitation to another party. The exploitation rights can be granted as simple or exclusive rights.

Simple exploitation rights permit their owner to exploit the protected work in the granted type of exploitation alongside other parties, e.g. by one-time display of a photograph. In this case further exploitation is not permitted. The photographer can dispose of the photograph at free will.

The case is different, however, where a photographer grants an exclusive exploitation right. The owner of an exclusive exploitation right is entitled to exploit the protected work under exclusion of all other parties, even the author himself, and to grant simple exploitation rights to others. This means that the photographer cannot exploit the protected work himself anymore, once he has granted the exclusive exploitation right to another party.

Whether the granted rights constitute simple or exclusive exploitation rights is determined by the so-called “Zweckübertragungstheorie” underlying Sec. 31 para. 2 of the Copyright Act.
This theory states that, “where the parties have not specified which individual exploitation rights should be transferred, the intention of the assignment contract between the author and the purchaser is decisive”.

Even copyrights are not unlimited. Pursuant to Sec. 50 of the Copyright Act, for the purposes of reporting on current events by broadcasting or similar technical means, the reproduction, distribution and communication to the public of works which become perceivable in the course of these events shall be permitted. This provision e.g. permits newspapers to publish photos of exhibitions if the exhibition is being reported on in the newspaper.

Courts and public authorities are permitted to reproduce works for the purposes of legal proceedings and public safety measures, pursuant to Sec. 45 of the Copyright Act. According to Sec. 51 of the Copyright Act, it is generally permissible to reproduce, distribute and communicate to the public a published work for the purpose of quotation.

The right of reproduction for own personal or scientific use pursuant to Sec. 53 and 54 of the Copyright Act is also highly significant.

Further limitations to the right of exploitation are provided by Sec. 46, 55 and 58 of the Copyright Act.

Where your copyrights are infringed you can issue cease and desist warnings pursuant to Sec. 97 and 97a of the Copyright Act and e.g. claim cessation and damages from the infringing party. You can transfer the exertion of rights to a lawyer. We are pleased to exercise these rights for you. Get in touch with us and we will consult you on the further procedure and possibilities.

The right to one’s own picture

When is it permitted to photograph other people and when is it prohibited? May these photographs be distributed and published?

These questions are discussed under the institution titled “Allgemeines Persönlichkeitsrecht”, which describes general personal rights and is protected under Art. 1 in connection with Art. 2 of the German Federal Constitution [Grundgesetz]. Generally speaking, a person’s permission is not necessary for every taken photograph. One must distinguish the act of taking and the act of publishing a photograph. While taking a photograph does not necessarily always require this person’s permission, it does, when the photograph is taken with the intention of being published.

If the respective person indicates the desire not to be photographed, the photographer must respect this desire. If the photographer does not respect this desire, the “injured” person is generally entitled to claims for removal, cessation and damages under civil law.

Therefore, as a principle, nobody is obligated to accept being photographed. An obligation to tolerate the taking of photographs only exists where it is provided by law. Such provisions exist, e.g. in the area of criminal procedure law.

This information only provides a general overview. In each case an individual assessment is always necessary. Do you have questions? Do not hesitate to contact us by telephone or in writing in order to make an appointment for consultation.