"Image theft" on Ebay
August 6, 2011 | 40,00 EUR | answered by Jan Wilking
Hello,
my girlfriend offered her camcorder for sale on Ebay and, out of ignorance (which of course does not protect against punishment) and unawareness of Ebay's terms and conditions, uploaded 5 images of the device, including large parts of a retailer's auction text.
The retailer reported this directly to Ebay, leading them to immediately cancel the auction. The images were only online from 25.07.11 20:07 to 26.07.11 10:40 (so only for 14.5 hours).
The retailer wanted to reach a financial settlement without going to court for cost reduction, and claimed a supposed minimum rate of 150,-€ per image (so a total of 750,-€) plus a processing fee of 30,-€, totaling 780,-€.
It is undisputed that my girlfriend violated copyright out of ignorance and that a claim for damages exists. The issue is only the very high demand for damages, which seems unrealistic and disproportionate considering the actual damage caused in 14.5 hours. The website http://www.it-recht-kanzlei.de/bilderklau-im-internet.html only estimates 60,-€ per image for up to a week.
How should we proceed? Should we contest the legal route, or pay the 780,-€ out of court?
Thank you for your help!
Dear inquirer,
I am happy to answer your inquiry taking into account your description of the facts and your input as follows:
Based on your description, it seems clear that your girlfriend is liable for damages (although in case of dispute, the seller would first have to prove that they are actually the author of the images and texts or have the exclusive rights to use them). For the calculation of damages, the seller may choose from the following alternatives: compensation for the financial loss suffered, including lost profits, payment of a reasonable license fee (license analogy), or surrender of the infringer's profit. In your case, it seems the seller has opted for the license analogy. Typically, in cases of unauthorized use of images, the fee recommendations of the Association of Professional Photographers and Film Creators (MFM) are used for calculating damages. This results in the claim of 60,- EUR/week that you mentioned. Additionally, there is an infringer's surcharge of 100% if the author was not credited upon publication.
However, these fee recommendations are for commercial use. I assume that your girlfriend used the images in a private auction. In such cases, the appropriate compensation is significantly lower and primarily depends on the achievable price for the camcorder. In a similar case, the Higher Regional Court of Brandenburg deemed a compensation of 40,- EUR (including surcharge) per image to be reasonable (judgment of 03.02.2009, case no. 6 U 58/08). The District Court of Cologne considered 60,- EUR per image in a private eBay auction (judgment of 31.03.2010, case no. 125 C 417/09).
In my opinion, a maximum of 300,- EUR could be demanded for the use of 5 photos, possibly even less due to the short duration of use, although the text should also be taken into account (assuming the item description was indeed protected by copyright, which is not always the case). Therefore, you should offer the seller this maximum amount as compensation, referring to the mentioned judgments. I believe the seller will be satisfied with this. Although a definitive prediction cannot be made, it is rather unlikely that the seller will obtain a higher amount in a legal dispute, more likely a lower one. However, you should be aware that the seller also has a claim for injunction against your girlfriend. As long as your girlfriend has not given a legally binding and enforceable declaration that she will refrain from using the specific images and texts in the future, the seller can sue her for injunction, resulting in further costs. If there is indeed a risk that the seller will proceed with legal action, your girlfriend should also provide a declaration of injunction along with the offer of lower compensation to fulfill this claim. I find it very unlikely that the seller would initiate a legal dispute with a high risk for the sole reason of the additional 480,- EUR demanded.
I hope to have provided you with a helpful initial orientation. If you have any uncertainties, please use the free follow-up function.
Please note that in the context of an initial consultation without knowledge of all circumstances, I cannot give a definitive advice. If you require a final assessment of the situation, I recommend contacting a lawyer and discussing the matter with them after reviewing all documents.
Best regards.
