Is an amount in dispute of EUR 15,000 for a claim for injunctive relief against the unauthorized use of three photographs on a commercial website objectionable? The Munich Higher Regional Court had to decide this question in the context of an appeal on the value in dispute.
A picture agency issued a warning letter to a provider of modular houses for the use of three photos on its homepage, demanding injunctive relief, information, a declaration of liability for damages and payment of warning costs.
After concluding a settlement at the oral hearing, the Munich Regional Court set the amount in dispute at EUR 16,050.00 in accordance with the amount in dispute stated by the picture agency in the statement of claim, with EUR 15,000.00 being allocated to the claim for injunctive relief in respect of the three photographs.
The trader is contesting this with a complaint on the value in dispute, with which he is seeking a reduction in the value in dispute determined by the Munich Regional Court.
Decision of the court
The Munich Higher Regional Court dismissed the trader's complaint regarding the value in dispute in its decision dated 10.04.2015 - case no.: 6 W 2204/14 - as the picture agency's assessment of the value in dispute was not objectionable.
The amount in dispute of an application for an injunction is generally determined by the interest of the picture agency in preventing further infringements. The basis for the estimate to be made is, on the one hand, the value of the infringed photographs. In addition, the character and scope of the threatened further infringements, the size and significance of the infringer and the nature and extent of the infringement must be assessed.
The Higher Regional Court was well aware that the assessment of the value in dispute by the courts of lower instances varied widely. However, the photos of a professional photographer that are the subject of the dispute cannot be compared with a product photo in sales offers on internet platforms, which are generally assessed with a low value in dispute, either in terms of their motif or their quality.
In this case, the photographs were used to design the commercial website of a provider of modular houses. In this respect, the use was not comparable to use as a product photo on eBay listings. In contrast to the use of product photos, which is usually only for a certain period of time, the use in dispute here was intended for the design of a commercial website on a permanent basis.
Conclusion
Determining the amount in dispute for an application for injunctive relief under copyright law is a challenge, as is determining an appropriate license fee in view of the inconsistent case law of the lower courts. Ultimately, it is always a case-by-case question in which the author's interest in preventing the infringement must be assessed.
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