License analogy and right to information in cases of unauthorized image use – The “Cologne Cathedral case”
Commentary on the judgment of the Higher Regional Court of Cologne, judgment of May 23, 2025 – 6 U 61/24
Background
The decision of the Higher Regional Court of Cologne deals with the dogmatic distinction between the protection of publicly accessible spaces under property law and copyright usage rights in the context of digital image licensing. The plaintiff, the owner of a space freely accessible to the general public (Cologne Cathedral), sought from the defendants – operators of a website offering millions of images for licensing – for information and damages for making available to the public and licensing photographs that were taken without consent inside the plaintiff's property and offered for commercial licensing on the defendants' platform over a long period of time. In addition, copyright claims were asserted on behalf of the artist Gerhard Richter in relation to photographs of a copyright-protected window designed by him (the so-called “Richter window”), which was also the subject of individual images.
It had already been established by the final judgment of the Higher Regional Court of Cologne (19 U 130/21) that the defendants were obliged to refrain from and pay damages for the unauthorized use of 236 photographs. In the proceedings now at issue, the plaintiff relied on this previous decision and successively expanded its claim to include further uses of images, claims for damages, and requests for information. Both the plaintiff and the defendants appealed against the first-instance decision.
Key issues
The central question was whether the repeated and long-standing use of the photographs in question gave rise to claims for damages, whether this also applied in the absence of specific product-related advertising, and how the damage was to be assessed by analogy with licensing. The decisive factor in this case was the selection of appropriate tariffs in the absence of relevant licensing practice on the part of the plaintiff.
In addition, the question arose as to whether the plaintiff was entitled to assert third-party copyrights by way of arbitrary litigation and the scope of permissible use of photographs in which protected works—in this case, primarily the well-known Richter window by the artist Gerhard Richter—appear only in the background.
Decisive provisions
Sections 97(2), 15, 16, 19a, 2(1)(4), (2) UrhG; Section 823(1) BGB; Section 57 UrhG; Section 287 ZPO, VG Bild-Kunst tariffs, tariff groups A and D
Guiding principles of the court decision
The plaintiff is entitled, by way of voluntary litigation, to assert copyright claims on behalf of Prof. Dr. E. insofar as his rights of use are affected by the use of the photographs in dispute.
The limitation of Section 57 UrhG (insignificant accessory) does not apply if a copyright-protected work also has a recognizable relationship to the main motif in the background and influences its overall effect, including due to its popularity.
If an identical photograph is made publicly available several times under different identification numbers, this constitutes a separate infringement, which is independently liable for damages.
Even when images are posted on database-based licensing platforms, the platform operator is liable as the direct perpetrator if it actively grants itself rights of use, adds its own branding to the images, and markets them under its own name.
The owner's claim for damages for the unauthorized commercial use of photographs of his premises is to be assessed in accordance with the principles of license analogy under Section 287 of the German Code of Civil Procedure (ZPO). It is irrelevant whether the rights holder would have been prepared to grant a license in the individual case. Rather, the objective value of use must be taken into account, considering all circumstances of the individual case; the rights holder's own licensing practice is to be given priority, otherwise the rates of VG Bild-Kunst can serve as a relevant reference point, whereby the most relevant rate group is to be selected. In the case of commercial use of photographs via an image database by a professional provider without specific product-related advertising, the rates of VG Bild-Kunst, Group D (“Information Services”) are to be used as a priority for estimating damages. The rates of Group A (“Advertising and PR”) are only relevant in the case of direct commercial use.
The mere inclusion of photographs in an extensive online database comprising millions of images constitutes only a minor infringement, despite their long-term availability, if actual commercial exploitation – for example through license agreements – occurs only in very few cases.
According to Section 242 of the German Civil Code (BGB), there is also a right to information about the end date of the use of photographs even if the right holder's claim for damages cannot yet be conclusively quantified; however, each infringer is only obliged to provide information about the respective end of use to the extent of their own knowledge – there is no joint and several liability in this respect.
Consequences for practice
The decision of the Higher Regional Court of Cologne sets clear standards in several respects.
Photo agencies and platforms that distribute image material commercially must check particularly carefully whether their photographers have sufficient rights to the works and locations depicted – especially in the case of publicly accessible buildings or works of art owned by third parties.
Liability as a direct infringer has been tightened: anyone who actively grants licenses bears responsibility – merely relying on assurances from photographers is not sufficient.
By identifying the tariffs of VG Bild-Kunst, Group D, as the closest reference for estimating damages, the court has clarified a previously unclear area of copyright license analogy for platform operators.
At the same time, the distinction between mere online availability and economically realized use is of considerable importance for assessing the severity of the infringement and thus the amount of damages. Also noteworthy is the clear rejection of any kind of de facto liability privilege in the case of active participation in the exploitation of rights – an important signal in view of the increasing use of image databases in AI-supported applications.
