BGH; 2024-10-23; I ZR 112/23
Decision by national courts in the field of European Union law — ECLI:DE:BGH:2024:231024UIZR112.23.0
Date: 2024-10-23
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82024DE1023(51)_ENG_SUMJURE
JURE summary
JURE summary
A British photographer who claimed to be the author of the photographic work ‘Manhattan Bridge’ (hereinafter ‘the plaintiff’) brought an action against a German online trading platform on which third parties could sell goods (hereinafter ‘the defendant’), seeking the issuance of a cease-and-desist order regarding the reproduction, making the photographic work available to the public and/or distribution thereof, including unauthorised adaptations.
Two sellers used the protected image in their sales offers for portable televisions on the defendant’s platform without naming the plaintiff as the author.
The Landgericht Nürnberg-Fürth (hereinafter ‘the Court of First Instance’), seised pursuant to Article 4(1) of the Brussels I Regulation (recast) (1), largely upheld the claim and ordered the defendant to cease and desist from the contested actions, pay damages and provide information. The defendant had enabled the distribution of the photographic work by making its platform available and was therefore to be classified as an indirect infringer of copyright. In addition, it had failed to take appropriate measures to check and prevent further infringements after the plaintiff’s warning.
The defendant then appealed to the Oberlandesgericht Nürnberg (hereinafter ‘the Court of Appeal’). The Court of Appeal confirmed the decision of the Court of First Instance with regard to the topic of the photographic work being made available to the public. It found that the defendant, as the operator of the platform, had a special responsibility as far as the use of copyrighted work was concerned. The Court of Appeal considered the lack of response to the warning to be a breach of duty and emphasised that online marketplaces had not only to remove the specific infringement after notification of an infringement but also had to check whether there were similar infringements on their platform proactively. However, the Court of Appeal partially overturned the decision of the Court of First Instance and dismissed the claim regarding the reproduction of the photographic work. The actual reproduction of the work was not carried out directly by the defendant itself, but by the sellers who had uploaded the product images.
The defendant filed a revision to the Bundesgerichtshof (hereinafter ‘the Supreme Court’). The Supreme Court clarified that the defendant was not liable for the reproduction, as the technical processes of uploading were carried out by the sellers, and the platform operator did not play an active role in the creation of the reproductions. The defendant was therefore not to be regarded as a perpetrator or participant in the copyright infringement. Liability for interference was also denied, as the defendant did not breach any reasonable obligations to check. At the same time, the Supreme Court confirmed the defendant’s liability for making the photographic work available to the public. The Supreme Court also found that the defendant benefited economically from the sales transactions, as it received a fee for each successful sale. This underlined the special responsibility of the defendant and also an increased duty to verify compliance with copyright.
Based on the defendant’s revision, the Supreme Court set aside the judgment of the Court of Appeal to the extent that the Court of Appeal found the defendant guilty of reproducing and/or allowing to be reproduced the photographic work ‘Manhattan Bridge’. The judgment of the Court of First Instance was modified corresponding to the scope of the annulment, and the plaintiff’s claim was dismissed.
(1) Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.