Can authors waive their right of attribution?

Economic rights have been harmonised throughout the EU to a significant extent. Moral rights, however, have not (yet). This means navigating a patchwork of national legislation and court decisions when dealing with international copyright projects. While it appears to be easier to waive moral rights in common law countries, the continental European tradition is more focused on protecting the author’s personality rights, which encompass moral rights. The right of attribution is particularly important for photographers and their licensees. The German Supreme Court recently decided whether a photographer can waive the exercise of their right of attribution in the general terms and conditions of a microstock portal (I ZR 179/22).

Background

The plaintiff is a professional photographer, who markets his photographs exclusively and very successfully through microstock portals. Up to March 2021, his photographs have been licensed more than 800,000 times.

The plaintiff concluded an “upload agreement” with the former microstock portal Fotolia (now Adobe Stock). In the portal’s general terms and conditions, the plaintiff granted the right to sublicense his photographs to the portal’s customers on a non-exclusive, worldwide basis. The terms and conditions also provided that users were not required to attribute the photographs to the plaintiff and the plaintiff waived the right to be named as the photographer.

The defendant concluded a “download agreement” with Fotolia concerning one of the plaintiff’s photographs. She used it as a background picture for her website without naming the plaintiff as the author.

The plaintiff sued the defendant for not attributing the photograph to him. The first and second instance courts dismissed the claim.

The German Supreme Court’s decision

The German Supreme Court confirmed the lower court’s decision and dismissed the plaintiff’s appeal.

According to Sec. 13 German Copyright Act, the author of a work has the right to be identified as such. The author may determine whether the work is to bear a designation of authorship and which designation is to be used. An infringement of this right triggers claims for injunctive relief and damages.

The Court found that the right of attribution cannot be waived as such because it forms part of the author’s inalienable personality rights. However, the author may waive exercising this right or consent to third party uses of their work that impair this moral right. Agreements restricting the exercise of the right of attribution have limits. They may not be contrary to accepted principles of morality (Sec. 138(1) German Civil Code) or, if they are contained in general terms and conditions, unreasonably disadvantage the author (Sec. 307(1),(2) German Civil Code, which implements Directive 93/13/EEC on unfair terms in consumer contracts into German law; the German rules also apply to B2B contracts).

There was no question about a violation of accepted principles of morality but rather, if the ‘waiver’ in Fotolia’s general terms and conditions unreasonably disadvantaged the plaintiff. The answer to this question required an overall assessment, which includes balancing the interests of the author and its contractual partner and taking into account the type of work, the purpose and duration of the agreement as well as the customs and norms in the relevant sector.

The German Supreme Court confirmed that the lower court’s balancing of the parties’ interests showed that the plaintiff’s waiver of his right to attribution did not unreasonably disadvantage him:

• The plaintiff freely chose to market his photographs via a microstock portal. He could have chosen to use macrostock agencies, which focus on quality, charge higher licensing fees and require the author to be named.
• The plaintiff chose to employ the services of a microstock portal in his own interest in order to avoid the time and financial effort to market the photographs himself. 
• The business model of a microstock portal is based on a wide reach. In order to reach as many potential customers as possible, the licensing terms must be attractive. Part of the attractiveness is that customers do not have to identify the author of a licensed work or have to make the effort to obtain the author’s ‘waiver’. This allows the microstock portal to attract a large customer base and to grant a large number of licenses, which benefits the authors, who market their photographs through the microstock portal.  
• The large number of (potential) customers compensates the rather low licensing fees the authors can generate.

Comment

The judgment provides helpful guidance for balancing the interests of authors and licensees of their works when it comes to deciding whether waiving to exercise the right of attribution in general terms and conditions is valid or not.

The decision also provides legal certainty for users of microstock portals, at least when royalties are paid. The question remains if the outcome is the same for free microstock portals. If you allow third parties to use your pictures for free, there does not seem to be an (economic) rationale to require the user to indicate the name of the photographer. Having said that:

The above picture is by Emre Akyol and used under the licensing terms of pexels.com.