Copyright: new decision on photos

Copyright: Photo decision eases handling in everyday business life

Photos, texts, presentations - copyright issues frequently arise in everyday business life. However, the granting of rights to such works is comparatively rarely discussed or recorded in writing. This can lead to unpleasant surprises. The Supreme Court recently ruled in favour of the client in such a case.

In the specific case, a professional photographer had taken photos for a company for more than 15 years. The photos were used by the company almost without restriction for various purposes and usually without any copyright notice. There was no explicit agreement on permissible use. When an attempt was made in 2017 to put the lived business relationship in writing, the contract negotiations failed. The photographer went to court: The company should only be allowed to use the photos in a limited way and had to name him as the author.


The defendants successfully defended themselves against this at first and second instance. Now the Supreme Court has confirmed the dismissing judgements (OGH of 20.04.2021, 4 Ob 215/20a).


As a matter of principle in civil law, contractual relationships with rights and obligations can also arise without an explicit agreement ("tacit" or "implied"). The content of the contract is then primarily determined by what was intended (but not expressed) by both sides. If both sides had no idea at all of what they wanted with regard to individual (ancillary) points, or if these ideas differ from each other, legal standard rules can be applied in some cases. If these do not exist, what counts is usually what average, reasonable contracting parties would have agreed.


In copyright law, there are two important special rules for cases where the scope of the grant of rights has not been expressly agreed: On the one hand, as the Supreme Court emphasised once again in its decision, a grant of rights is in principle limited to the purpose for which the work was originally granted. On the other hand, according to the law, in some cases (e.g. edits) it must be assumed in case of doubt that the author granted or intended to grant fewer rather than more rights.


In practice, this leads to a situation where, in the case of such copyright contracts that are not expressly regulated, an entrepreneur must suddenly realise that he does not have the necessary rights for a desired use. This can be the case in particular if he originally acquired the respective work for a specific purpose (e.g. internal company use) and now wants to use it for a different purpose (e.g. use in marketing documents).


However, in the above case, the company was able to convince the courts that there was a sufficient implied agreement between the photographer and the company for the use. In doing so, the court considered the following points to be essential:

  •  from the outset, the company made it clear that the photos would also be made available to third parties;
  • the photographer had never objected to the publication of his photos,
  • the photographer also complied with the requirement that the photos he produced should only be made available to third parties with the company's consent;
  • the photographer also almost never expressed a wish to be named;
  • the photographer's invoice contained the note "Copyrights-use right unrestricted except posters", and a use for posters, trade fair walls, roll-up city lights etc. did not actually take place.

The Supreme Court thus saw a sufficient basis for the legal assessment of the lower instances that the company has an almost unrestricted right to use the photos.


This decision is welcome, as it creates more certainty for companies that regularly work in the copyright context without a special agreement. At the same time, however, it also clarifies that even small points such as the note on the invoice or the clear communication that a work is used without restriction can help to prevent the risk of a subsequent restriction of use.

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