the Internet to find every conceivable topic photos. The fast access and simple technical means to copy these photos to many Internet users apparently created the impression that one may use such photos free simply by a customer. This is not the case.
Particularly in sales platforms like eBay is a good photo of the item to be sold to a successful bid. This leads many to other sellers in auctions or from the depths of the internet and pick out the appropriate photos to use for its own services without obtaining the necessary approval for this. In this case, save the one who obtains photos in this way, the effort to create your own photo, or to obtain a license.
this case, the violated rights arising from the copyright of the photographer.
rights of photographers from the Copyright Act
the photographer against unauthorized users of the photos injunctive relief pursuant to § § 97 paragraph 1 Copyright Act (Copyright Act), information rights under the Copyright Act § 101 and claims for damages according to § 97 para 2 UrhG.
The seller, who has created his own photo auctions, is protected as the author of this photo by the Copyright Act. The same applies if the seller has commissioned a photographer with the preparation of the photos and the exclusive rights to use the photo were transferred to the seller.
A photograph is usually a light sculpture, and thus protected by copyright under § 2 para 1 No. 5 Copyright Act. The photographer is the author within the meaning of § 7 UrhG.
The authorship is thought to anyone who is conventionally referred to as the creator of the work or copies as the author. Since there is no obligation of the author to provide his real name, is sufficient under § 13 clause 2 UrhG, the use of a cover name (Dreyer Schulze / Schulze copyright law 3rd ed CH Beck 2008 § 10 para. 9). Therefore expected for the unique identification of the photo in terms of a copyright notice enough of the dealers name on eBay. As the seller, like all other users of eBay, only sold under his user name, a photo that is labeled with his or her user name is assigned exclusively to him. For a photograph with their username in the sense of copyright notice, it is considered copyright.
addition, a photo that is due to lack of height creation any copyrighted work protected as a photograph within the meaning of § 72 UrhG. The photographer then has at least according to § 72 paragraph 1 Copyright Act related rights to the photograph.
is the unauthorized use of photos on the internet only a violation of the photographers are entitled duplication rights pursuant to § 16 of the Copyright Act and the right of making available according to § 19 a UrhG.
possibilities of the photographer
The photographer can make against unauthorized users of the photo by way of a warning out of court his claim for injunctive relief claims. The cost of the warning has to pay the unauthorized user, § 97 a UrhG II.
If the user makes a penalty clause explanation of the injunction is done. Returns from the users of the photo does not desist, the injunction will be enforced in the courts either by an injunction or an action.
addition, the photographer can claim damages for the unauthorized use of the photo. For the calculation is the indemnity claim, there are three alternative ways in which the rights holder can choose the best for him. The claim for damages can be calculated either from the loss of profits of the owner, the publication of the damage caused by the unauthorized use infringer or by paying a reasonable license fee.
As proof of actual damages or the actual calculation of the infringer is difficult, is usually required to pay a reasonable license fee. As compensation, the amount requested, which would be incurred in the acquisition of rights of use. Is there no standard for the photo license fee, because the photographer the rights to the photo did not want to third parties, may be resorted to for the usual license fees. Various courts determine the fee recommendations picture fees and medium-sized Foto-Marketing (MFM) as a basis.
dimensioned to order the Damage, the rights holder a right to information on the nature and extent, especially the duration of use.
As for the actual quantification of the damages claim of the plaintiff prior information of the defendant on the extent of the use of photography is necessary, in court proceedings usually charged on a stepped action under § 254 ZPO, after the required first step and to provide information Receiving the information of the damage is estimated in practice.
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