12.10.2020
Supreme Court 22.04.2020, 4 Ob 16/20m
In 2018, a photo was published on Facebook. It showed the Vorarlberg governor Markus Wallner (ÖVP) in conversation with Federal Chancellor Sebastian Kurz (ÖVP) at a table in a pub. In the background of the photo (on the wall of the pub) was a picture of a woman smoking. The post with the original photo of the two politicians was deleted shortly afterwards on the Vorarlberg governor's social media page and replaced by a post in which the same photo was shown, but without the picture of the woman smoking on the wall in the background - the picture was replaced by a picture of an Alpine landscape - obviously considered more appropriate to the situation. This process (i.e. the changing of the background image itself to a more innocuous image) was reported in leading media.
In 2018, the SPÖ parliamentary group also illustrated a report on this perceived “message control” of the political opponent by comparing two photos – one with a woman smoking in the background, the other with an Alpine landscape.
The producer of the photograph inserted in the background (the Alpine motif) commissioned the Austrian Photographers' Legal Protection Association to file a lawsuit against the SPÖ parliamentary group, seeking payment of appropriate compensation and the cessation of publication without permission to use the work and/or without the manufacturer's name, as well as publication of the judgment.
The SPÖ parliamentary group invoked the quotation right under Section 42f of the Copyright Act. The maker of the photograph with the Alpine motif was not known and was also not recognizable in the quoted photo of the two politicians. The free use of a work under Section 42f of the Copyright Act provides that a published work may be used for the purpose of quoting, provided that the extent of the use is justified by the purpose of the quotation. This is the case here.
In principle, this is also true: if
- a photograph has a quotation and evidence function in the context of a report,
- this purpose cannot be achieved in any other way (for example by a representation in words or by obtaining the consent of the rights holder), and
- the economic interests of the rights holder are not unreasonably impaired,
the use of the photograph "as a quotation" may be permitted even without the consent of the rights holder. However, a source must always be indicated, including the name of the author or producer, unless this is impossible.[1]
The first court granted the legal protection association’s request for payment of appropriate compensation and the cessation of publication, but the appeal court dismissed the claim, citing a previous decision of the Supreme Court on the right to quote.[2] but declared the ordinary appeal to the Supreme Court admissible.
In previous decisions on the right to quote in relation to photographs, the photographer generally took action as plaintiff against the defendant who took over the photograph by way of a quote. In this case, however, a photographer whose photo (the Alpine motif) had been inserted into the photo of the two politicians, which was subsequently published as a posting and only then published in a further step in the reporting of the SPÖ parliamentary group, sued the person who had quoted (in this case the SPÖ parliamentary group). The appeal court was uncertain whether the principles on the right to quote previously established by the Supreme Court should also be applied in this particular situation.
In its decision of April 22, 2020, the Supreme Court came to the conclusion that the principles previously established on quotation law also apply in the present case. The present case concerns criticism of a political competitor, "who undertook photo retouching to optimise the media presentation of his representationsTherefore, the published photograph with the subsequently added Alpine motif would have a quotation and evidence function with regard to the retouching of the original photo.
It would also have been unlikely that the copyright holder of the retouched photo of the two politicians or the copyright holder of the Alpine motif would have consented to the publication of the image. Therefore, the Alpine motif photo was permissible to be used as part of a quotation.
The Supreme Court also convincingly held that it makes no difference whether the rights holder of the Alpine motif himself participated in the retouching of the politician's picture. It was also neither claimed nor proven that the SPÖ parliamentary group would have been able to find out the name of the photograph manufacturer before the Alpine motif in question was published. Therefore, the omission of the manufacturer's name in relation to the Alpine motif would not be an infringement of rights.
This decision of the Supreme Court is to be agreed with. Section 42f of the Copyright Act is intended to create a balance between the quoting party's fundamental right to freedom of information and opinion and the copyright of the person quoted. It would be an intolerable restriction of freedom of opinion if one had to forego an image quotation simply because additional image elements were inserted into it whose manufacturer or author is unknown or whose consent for use cannot be obtained. In particular when it comes to depictions of image manipulation in the political opinion-forming process, it must be possible to cite both the original image and the manipulated image as evidence in the context of a quotation. This means that the copyrights to the image elements used for manipulation are not unduly restricted.
This decision (in conjunction with the decisions taken since the revision of the quotation law in 2015[3] However, the recent decisions on Section 42f of the Copyright Act also show the challenges that the interpretation of copyright law still poses for the media, photographers and, not least, courts.
[1] Mitterer/G.Korn in Kucsko/Handig (ed.), urheber.recht² (2017) § 42f Rz 38 mwN.
[2] OGH 22.08.2019, 4 Ob 53/19a, OGH 29.01.2019, 4 Ob 7/19m and fundamentally OGH 26.09.2017, 4 Ob 81/17s.
[3] Copyright Amendment 2015, Federal Law Gazette I 2015/99.