The SME Foto-Marketing (MFM) all years, the Commission again in the Photo area of usual fees (for 2011 there is an example in Mediafon Quick Reference ). This recommendation is often taken by courts when it comes to determining the damages for unauthorized use of images. So according to principles, the so-called be " license analogy " basis: the person who hurt the image rights, should not be in better shape than when he had agreed with the right holder a license. This type of calculating damages is to ask what reasonable parties would have agreed as payment for the use made by the infringer acts - and that depends, for example according to the recommendations of the MFM.
But not in every case: The District Court of Kassel has Judgement of 04/11/2010, reference number 1 O 772/10 lays down that the MFM recommendations can not be used if the rights holders are the images in question another, independent License agreement was made - and then even if it fails a lot less lucrative.
In this specific case, a photographer had made for a company three photos and this at a price of 150, - license €. The company passed the pictures on the then defendant, and that she used for several years on his website.
The photographer then demanded compensation on the basis of MFM's recommendations, namely:
The court calculated differently and came all in all only 450, - €:
basic fee for the first year (3 pictures à 260.00 €) 780.00 € award for five more years of useful life of 50% 1950.00 € 2730.00 € surcharge for failure to Picture source evidence of 100% 2730.00 € total 5460.00 €
"is the present case, however, the special feature that the applicant two years before the start of legal violations by the defendant for the comprehensive use of pictures with the company" ... "agreed a fee of 150,00 € per shot. In a this case appears [...] the attraction of the amounts of [MFM] not appropriate. Rather, [...] that are the basis for specific images in question was specifically agreed remuneration "The court then criticized even more errors in the above calculation. The lack of volume discount, then, that neither the 50% - term impact of more years of use yet - because of lack of determination on the designation of the author - a surcharge may be required because of failure to Picture source evidence
Ultimately, the photographer went with less than 10% of its original demand for home -. instead of 5460, - € he got only 450, - € awarded. We see that, before legal action is worth a closer look and to see first of all the circumstances of the case closely.
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