Reasonable remuneration and right to information in the case of commercial use of a portrait photograph
Federal Court of Justice (BGH), judgment of 18 June 2025 – I ZR 82/24
On the question of whether a photographer is entitled to a right to information and appropriate additional remuneration pursuant to Sections 32a and 32d of the German Copyright Act (UrhG) if a portrait photograph that was originally remunerated at a low rate was subsequently used extensively for advertising purposes.
Background
The claimant is a professional photographer and in July 2011 took portrait photographs of the managing director of a company that sells dietary supplements. He assumed that the image would be used for a training plan. For the photo shoot, he received a fee of only €180, equivalent to four hours’ work at €45 per hour. Subsequently, however, the defendant used a cropped image of the managing director’s face extensively for advertising its products: the photograph appeared on the packaging of some 25 categories of nutritional supplements and was widely distributed through online retailers as well as via a teleshopping channel. The claimant then asserted claims for information, accounting and additional remuneration.
Central issue
The central issue in the proceedings was whether the author (photographer) was entitled to information and, if applicable, additional remuneration if his work was used extensively for advertising and commercial purposes contrary to the original agreement.
In particular, the question arose as to whether the portrait photo was only a ‘subordinate contribution’ to the product design – which would have resulted in the exclusion of the right to information (Section 32d (2) No. 1 UrhG) – or whether it was economically essential for sales.
Another point of contention was whether the claim had been forfeited, given that the photographer had not requested additional payment for years, despite close collaboration with the defendant.
Decisive standards
- 32d(1), (2)(1) UrhG, § 32a(1) UrhG, §§ 242, 259 BGB
Guiding principles of the court decision
The Federal Court of Justice affirmed the photographer's right to information under Section 32d (1) UrhG and ruled that even a work that was originally remunerated at a low rate can justify a claim for subsequent appropriate remuneration under Section 32a UrhG if its economic value increases significantly in the course of its use.
According to the Court, the portrait photograph was protected by copyright and did not merely constitute an “ancillary contribution” within the meaning of § 32d(2)(1) UrhG. Its use was deemed a defining advertising element: the repeated display of the managing director’s face on product packaging was not merely illustrative, but a central marketing feature for product recognition. Such design elements are copyright-relevant contributions and cannot be dismissed as subordinate.
The court clarified that high requirements apply to the exclusion of the right to information and that a copyright contribution can only be considered subordinate if it is recognisably insignificant for the economic exploitation of the overall product. This was clearly not the case here, as the portrait was used as an identity-forming element in the entire product presentation.
In addition, the Federal Court of Justice recognised concrete indications of a striking disproportion between the remuneration originally paid (€180) and the economic significance of the actual use. This disproportion generally triggers a claim for appropriate additional remuneration in accordance with Section 32a (1) of the German Copyright Act (UrhG). It is not decisive whether the author was aware of the extent of the use at the time the contract was concluded or could have been aware of it; rather, the objective development of the use of the work is decisive.
Whether the defendant’s argument of forfeiture succeeds – namely that the claimant tolerated the use for eight years while maintaining close contact with the defendant and accepting numerous well-paid follow-up commissions – remains to be determined by the Court of Appeal (OLG Munich). If forfeiture is upheld, both the claim for additional remuneration and the claim for information would lapse.
Consequences for practice
The decision strengthens the position of authors, especially photographers, whose works are later used in an economically significant manner. Even supposedly simple or low-paid commissioned works can trigger claims for information and additional remuneration if they are exploited commercially. Companies that access third-party works are therefore well advised to regulate rights of use clearly, completely and in terms of the type and duration of exploitation in a contract.
Furthermore, the judgment clarifies that the exception under § 32d(2)(1) UrhG must be interpreted narrowly: uses that are promotional or essential to product identity cannot be regarded as “ancillary” merely because the original effort by the author was limited. Exploitation via packaging, webshops, teleshopping, etc. can elevate a work into the central advertising and sales context, regardless of the original effort of the author, and thus trigger the rights to information and additional remuneration. For creative professionals, the decision underscores the need to document the use of their works and to monitor their economic development in order to be able to react in good time to insufficient remuneration if necessary.
