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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

© f11photo – Fotolia.com

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.

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 , here available as PDF ).

Photo theft on Instagram

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

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

Cease and desist declaration was denied

A cease and desist letter or even the reimbursement of damages was dismissed by the perpetrator. 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. However, the (individual) lawyer who responded did not help the restitutor. The submission of a cease and desist letter was also rejected by him.

Application for injunction in Germany?

Despite the clear legal situation, the claimant faced a problem: Would she be able to claim the infringement in front of German Courts?

The previous jurisdiction made it easy for perpetrators. 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 . The mere retrievability of the page was not enough. The right holder therefore had to prove  on the basis of objective circumstantial evidence that the website in question was designed to also address German users.

The Federal Court of Justice (Supreme Court, judgment of 21.4.2016, Az- I ZR 43/14 ) has decided in April 2016, that the place of success of an unauthorized act within the meaning of § 32 ZPOin 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.

Details on the pleasing paradigm shift can be found here:

The LG Cologne joined the BGH in 2018

One would think that the courts of appeal not only take note of the decision of the BGH, but also implement it immediately. Not even close. For two years, we had presented the cases for our clients across a wide variety of courts nationwide and were consistently failed with this argument throughout – even if we usually could convince the courts with other arguments of their jurisdiction.

This has been different since August 2018 – at least in Cologne – (LG Cologne, decision v. 14.8.2018, Az. 14 O 271/18). We reported here:

Cologne remains true to its line and issues a temporary injunction

Fortunately, the Cologne Regional Court upheld its position in the present case and issued an interim injunction in favor of the applicant, which prohibited the New York-based company from making the photography on Instagram publicly available (LG Köln, ruling v. 25.2.2019 , Az. 14 O 68/19 , available as PDF here ).

The competent chamber carries out the following in this regard:

(…) According to this, the international jurisdiction of German courts is justified for the claim for injunctive relief pursued by the preliminary injunction proceedings. The Applicant claims that the defendant, who is based in New York, alleges infringement of an ancillary copyright of the photographer in Germany in order to make certain photographs available to the public in Germany. The place of effect of an unauthorized act within the meaning of Clause 32 ZPO shall be proven in the case of an alleged infringement of copyright or related rights by making the subject publicly accessible via a website in Germany, if the rights asserted are protected domestically and the website ist (also) domestically publicly available. On the other hand, it is not necessary for the website to be retrievable as intended (also in Germany) (cf BGH, judgment of 21 April 2016, ref. I ZR 43/14 -An Evening With Marlene Dietrich).

Conclusion

The BGH decision adapted by the district court of Cologne ist highly interesting for the increasingly necessary lawsuits against Google or other US companies. It is to be hoped that – as it should be self-evident – further courts of appeal follow the supreme court case law.

Even if a German decision abroad, especially if it concerns countries outside the European Union, is often not directly enforceable, it may be useful to obtain a corresponding title. Although this only applies directly between the parties to the dispute, it can also be used to illustrate the legal situation or for the evidence that a German court has already assessed the conduct as illegal. The court decision can then be presented to third party providers such as host providers and last but not least search engine operators like Google. As soon as they have knowledge about a breach of law, they are liable for omission and possibly even for damages.

Last but not least, it may also be useful to inform business associates that the statements circulating on the Internet not only – judicially determined – are untrue, but that the plaintiff  is on the other hand decided to defend himself.

(Disclosure: Our law firm represented the petitioner.)

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