Supreme Court 25.01.2024, 4 Ob 120/23k
The question often arises as to whether images that private individuals (or professional photographers) upload to the Internet are protected and whether the use of these photos by third parties can give rise to claims for damages. As the author of a photograph (or photographic work), the photographer is entitled to the rights assigned to him by copyright law. In principle, photos may only be published if the person who took the photograph has consented to this. The ruling of the Supreme Court (OGH) of January 25, 2024, 4 Ob 120/23k, has now significantly strengthened the rights of photographers.
The trigger was a power outage in Vienna's Prater, which caused the lights to go out. People got stuck on rides. A man captured the scene on his cell phone and published the images on X (formerly Twitter). The next morning, an editor from the Austrian Broadcasting Corporation (ORF) contacted him and asked if he could use the photos for a report. When the photographer asked for compensation and the journalist refused, the matter seemed to be settled. Nevertheless, the ORF used three of the images in the main news program "Zeit im Bild".
The photographer, who noticed the unauthorized use of his images, went to court. He demanded compensation of €4,000. This was reasonable because the Copyright Act stipulates that in the event of unauthorized use, double the usual fee must be paid. The ORF argued that, due to the informational purpose, it was entitled to use the images without paying anything (commonly known as "free use of the work"). The Vienna Commercial Court rejected this view. It made it clear that the photos did not fall under the legally defined exceptions of the Copyright Act. The Vienna Commercial Court assessed the value of the images at €210 per image based on the recommendation of the photographers' guild. Since the ORF had used the images without permission, a total compensation of €1,260 was determined. This decision was confirmed by the Vienna Higher Regional Court and ultimately by the Supreme Court. The Supreme Court stated that the Austrian Copyright Act – in contrast to the German Copyright Act – “no general justification for the use of photographs can be derived [let], that show or are related to current events“.
The OGH's decision underlines that free use of works must remain the exception. It represents another building block in the protection of copyright in the digital era. It makes it clear that images already published on the Internet may not be (re)used without the consent of the author.
13.03.2024