26.05.2019
In its decision 4 Ob 250/18 w of April 25, 2019, the Supreme Court made some very interesting statements on the use of copyrighted photographs. The facts were quite original: A photographer (the plaintiff) had taken a photograph during the Academic Ball in the Vienna Hofburg on January 21, 2016, which showed the two politicians Heinz-Christian Strache and Norbert Hofer in the foreground. This photograph was subsequently made available to the APA and then published on the cover of the news magazine "Profil" issue 5/2018, among other things, as part of the coverage of the Academic Ball. The defendant, a Tyrolean hut owner, or one of his bartenders, made a collage that showed not only the crossed-out photograph of the two politicians, but also a crossed-out swastika and, among other things, the sentence "We must stay outside!" Neither the barkeeper nor the hut owner obtained the photographer's consent to use the photograph for this political action. The photographer's name was not disclosed either.
The photographer initially requested that the hut owner refrain from using photographs he had made, particularly if the plaintiff was not named as the author, and also that the judgment be published, and that he pay material damages and non-material damages (€700.00 on the one hand and €2,000.00 on the other). He also requested that the hut owner be found guilty of refraining from using his photographs or adaptations of them in public, particularly if these photographs were provided with National Socialist symbols.
The legal situation was more or less clear with regard to the photographer's designation as the author - here the courts granted the relevant injunction. According to Section 20 of the Copyright Act, the author generally determines whether and with which designation the work is to be given.
What was controversial (and answered differently by the Supreme Court than by the lower courts) was the question of whether or not the publication of the edited photograph or its use in a collage was legal, given that the hut owner used the photographer's photograph for political purposes (and in the eyes of the photographer, probably "misused" it).
Here, the Supreme Court reinstated the judgment of the first court, according to which the hut owner was not responsible for a copyright infringement by using the photograph: The defendant had used the physical copy of the medium “Profil” that he had purchased, in relation to which the author’s right of distribution was exhausted under Section 16 Paragraph 1 of the Copyright Act, at the latest with the publication of the magazine in question (Section 8 of the Copyright Act). It is true that Section 21 Paragraph 1 Sentence 1 of the Copyright Act states without exception that any change made by a third party who is not authorized to exploit the work, no matter how minor, must be avoided. Of course, copyright-related injunction claims can be overturned by justification, in particular the fundamental right to freedom of art and freedom of expression. Whether the right to freedom of expression outweighs the author’s copyright claim must be decided by a comprehensive balancing of interests. The criteria for balancing interests would be, above all, the type and intensity of the intervention, the degree of creative individuality of the work and the purposes of exploitation.
In the present case, the Supreme Court decided that the disputed use of the photograph was justified under the aspect of freedom of expression; neither the crossing out of the work nor the graphic additions placed in its surroundings (the swastikas) impaired the intellectual interests of the author in the photograph to such an extent that the defendant's right to freedom of expression had to take a back seat.
It is interesting in this context that the Supreme Court expressly did not use the established violation of the right to be named as the author (Section 20 of the Copyright Act) as a basis for awarding non-material damages. It was of the opinion that the fact that the plaintiff had not been named as the photographer was in no way so serious that the requirements of Section 87 Paragraph 2 of the Copyright Act (an impairment of the injured party that exceeds the natural annoyance associated with any infringement of copyright law) were met. According to this decision, a mere violation of the right to be named as the author does not generally justify a separate award of (non-material) damages.
In conclusion, the Supreme Court in this decision therefore deals with the question of the extent to which the circumstances surrounding the use of a work can affect the intellectual interests of the author. It answers this in the affirmative, but in the present case comes to the conclusion that the specific use was justified by the freedom of expression of the defendant mountain hut owner.