{"id":46140,"date":"2019-03-27T07:07:45","date_gmt":"2019-03-27T05:07:45","guid":{"rendered":"https:\/\/www.lhr-law.de\/?p=46140"},"modified":"2024-10-21T12:51:02","modified_gmt":"2024-10-21T10:51:02","slug":"if-i-can-make-it-there-ill-make-it-anywhere-regional-court-of-cologne-prohibits-u-s-agency-in-new-york-photo-theft-on-instagram","status":"publish","type":"post","link":"https:\/\/www.lhr-law.de\/en\/magazine\/if-i-can-make-it-there-ill-make-it-anywhere-regional-court-of-cologne-prohibits-u-s-agency-in-new-york-photo-theft-on-instagram\/","title":{"rendered":"If I can make it there, I’ll make it anywhere: Regional Court of Cologne prohibits photo theft by U.S. agency in New York on Instagram"},"content":{"rendered":"
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\u00a9 f11photo \u2013 Fotolia.com<\/figcaption><\/figure>\n

The Regional Court of Cologne (LG Cologne) remains true to its line and continues to follow the Federal High Court of Justice (BGH) in that it is sufficient for an international jurisdiction of German courts for a procedure for copyright infringement that the corresponding website is (also) available in Germany.<\/i><\/span><\/p>\n

Accordingly, the special chamber for copyright of the LG Cologne has recently issued a preliminary injunction against a company based in New York, that had made a photo library publicly accessible in the context of an English-language Instagram posting (LG Cologne, ruling v. 25.2.2019, Az. 14 O 68\/19<\/a> , here available <\/a>as PDF<\/a> ).<\/i><\/span><\/p>\n

Photo theft on Instagram<\/span><\/h2>\n

The Applicant, an internationally operating photographer, had noticed that a New York creative agency had published one of her photographic works on Instagram.<\/span> She asked the agency to submit a cease and desist declaration and to pay damages<\/a> .<\/span><\/p>\n

Contrary to what one would expect from a creative agency, a company that itself depends to a great extent on copyright<\/a> , there was no admission of guilt.<\/span> The applicant was told she was supposed to be happy \u00a0that her photo was published on Instagram – a defense argument often heard by creative people.<\/span> Because by doing so they gain more awareness.<\/span><\/p>\n

Cease and desist declaration was denied<\/span><\/h2>\n

A cease and desist letter or even the reimbursement of damages was dismissed by the perpetrator.<\/span> Rather, their “lawyers” (a certain kind of people, curiously enough, regularly claim to have not only one but several legal advisors on hand) were going to deal with the case.<\/span> However, the (individual) lawyer who responded did not help the restitutor.<\/span> The submission of a cease and desist letter was also rejected by him.<\/span><\/p>\n

Application for injunction in Germany?<\/span><\/h2>\n

Despite the clear legal situation, the claimant faced a problem: Would she be able to claim the infringement in front of German Courts?<\/span><\/p>\n

The previous jurisdiction made it easy for perpetrators.<\/span> Because the rights holder had to prove – at least until 2016 – that the website on which the infringement was located could also be called up in Germany as intended<\/em> .<\/span> The mere retrievability of the page was not enough.<\/span> The right holder therefore had to prove \u00a0on the basis of objective circumstantial evidence that the website in question was designed to also address German users.<\/span><\/p>\n

The Federal Court of Justice (Supreme Court, judgment of 21.4.2016, Az- I ZR 43\/14<\/a> ) has decided in April 2016, that the place of success of an unauthorized act within the meaning of \u00a7 32 ZPO<\/a>in case of alleged infringement of copyright or related rights by a public Making the subject accessible via a website in Germany if the claimed rights are protected domestically and the website is (also) publicly accessible in Germany.<\/span><\/p>\n

Details on the pleasing paradigm shift can be found here:<\/span><\/p>\n