According to the district court of Kassel’s decision of June 6th, 2014 (file number: 410 C 3000/13) authors of copyrighted works can exercise their right to decide if and how they want to be named as author of their works through terms and conditions.
In the case laid before the district court of Kassel, a photographer – the plaintiff – used terms and conditions when licensing photographs he’d taken. One of the clauses in his terms and conditions obliged the licensees to name him as author whenever they published his pictures. Defendant and plaintiff had concluded a license agreement, the defendant had paid the license fee, but didn’t name the plaintiff as author when he published licensed photographs. In view of this, the plaintiff was granted so-called supplemental damages of the same amount as the originally agreed upon license fee.
Article 13 of the German Act on Copyright and Related Rights (Copyright Act; the English translation of the Copyright Act can be accessed here) grants authors the right to be named as authors of works they created. They are the ones deciding if and how they want to be named. Where on a copyrighted work an author is named, depends on the type of work. When it comes to photographs, authors are typically named in close spatial relationship to the photograph, e.g. as a sort of caption.
The author’s right to be named is taken up by Article 10 Copyright Act, according to which the person designated as the author in the usual manner is regarded as the author of the work, until the contrary is proven. Thus, a failure to name the author not only deprives him of a marketing instrument, but overturns the reversal of burden of proof according to Article 10 Copyright Act, while also infringing the author’s moral rights to works.
The Court’s Decision
While it had been generally accepted that authors may waive their right to be named as long as the waiver is neither permanent nor irrevocable and not included in a standardized contract, the district court of Kassel now clarified that authors can exercise their right to decide if and how he wants to be named as author through terms and conditions. The defendant was held to be bound by the terms and condition, as they were validly incorporated in the contract under the conditions of sections 305 ff. of the German Civil Code (the English translation of the German Civil Code can be accessed here). The plaintiff had not waived his right to be named by agreeing on the license fee, which he had not been sufficiently remunerated by.
Consequentially, the plaintiff was granted supplemental damages, designed to especially compensate the loss of being named as marketing instrument.