OGH on Remuneration under Copyright Law

Jun 7, 2024 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has clarified whether the picture fees of the Austrian Photographers’ Guild can be used for the determination of reasonable remuneration under Section 86 of the Austrian Copyright Act (Urheberrechtsgesetz, hereinafter UrhG) even if the plaintiff is not a professional photographer.

The plaintiff and the defendants are active in, among other things, the field of fire protection technology, and are competitors in this field. From 2008 to 2016, the parties had a co-operation in which the defendants distributed the plaintiff’s products.

The plaintiff claimed that the defendants had used the plaintiff’s photographs without authorisation. Therefore, pursuant to Section 86 of the UrhG, the plaintiff claimed an appropriate fee. According to Section 87 (3) of the UrhG, this fee should be doubled and be calculated according to the recommendation of the Federal Guild of Professional Photographers. The plaintiff’s claim was for a total of just under EUR 14,000.

The court of first instance ordered the defendant to pay compensation of EUR 3,000 for the three-year use of the photographs after the end of the cooperation. The court of appeal upheld the decision of the court of first instance.

The OGH now ruled as follows:

The claim under intellectual property law is in fact a claim for use under Section 1041 of the Austrian Civil Code (Allgemeines bürgerliches Gesetzbuch, ABGB). The claim only exists if and to the extent that an unauthorised person has derived a benefit from the object in question.

Rightholders should be put in the same position as if they had contracted to allow the infringer to use the unauthorised right and agreed to pay a royalty. As a matter of principle, the infringer should not be placed in a better or worse position than that of a contractual licensee.

Reasonable market participants would not have agreed the usual professional photographer’s rates for the images in question. The plaintiff would therefore be better off with the (higher) amount the plaintiff is seeking than if there had been an agreement on the use of the pictures. In conclusion, the fee recommendations of the Federal Guild of Professional Photographers are not relevant if the photographs were not taken by professional photographers.

OGH 4 Ob 58/24v (4 April 2024)