Does Photographer Sell Archive Without Contract?

A professional photographer lent a publishing house prints of his shots for their archives. After demanding them back, the company refused because they paid a fee and therefore they owned these pictures. To clarify this dispute, BGH delivered a judgment on this issue on February 14, 2007 (re I ZR 34/04).


The parties in dispute had been in a business relationship since 1971. The plaintiff had sent the defending publishing house, partially in compliance with their wish and partially in his own interest, black & white prints of his photographs until the 90s. All pictures were on special paper in a customary size; all had the plaintiff’s name and address, the words “picture just lent” were stamped on the backside. The publishing house chose from the pictures the ones they wanted to keep and returned the rest. The plaintiff received royalties whenever the defendant published any of his pictures.

In the 90s, a collector’s market for vintage prints developed. Significant prices for photographs, printed shortly after being shot by the photographer himself, could be collected in auctions or from other sales. Since the defending publishing house had not published any pictures of the complaining photographer for over ten years, the photographer wanted to have his lent copies returned. Without prejudice, the defendant returned the pictures sent in the 90s and 63 other prints, which were found in routine archiving. The defendant demanded a time fee of € 300 per hour plus VAT for further searching and forwarding in their archive of 600,000 black and white pictures. It would be unreasonable for them to search for the pictures without remuneration.

The plaintiff argued that he is demanding his property back because he only lent the pictures. The archive fee for the defendant did not represent the material costs for the pictures.

The defendant argued that upon paying the fee, it had purchased the pictures. Since the plaintiff had sent the pictures unsolicited, it cannot be reasonably demanded that the plaintiff sort out the unknown number of prints.

The Bundesgerichtshof ruled that the photographer has a proper claim from §985 BGB) because he is the owner of the pictures. Contrary to the lower court, he did not lose his proprietorship when he sent the prints to the defendant and this company informed him that they added selected prints to their archive.

The parties in dispute did not have a clear determination what was to happen to the pictures after payment had been made and the publishing company archived the prints. Therefore, it has to be construed. Pursuant to §§133, 157 BGB, not the word of the agreement but the actual will of the parties determines the set of applicable rules. The real will of the parties is to be construed by means of all known incidents, especially how the contract was closed, its aim, its goal, etc. The actual will of the parties shows that the publisher was to temporarily keep the pictures. The photographer hoped to receive royalties whenever the pictures were published. The publisher was supposed to have the prints without any danger of regress. The wording “pictures just lent” exactly shows this interest.

Does sending pictures to the designated publisher, which are to be archived, convey the ownership of these prints? The “doctrine of the purpose of transfer”, derived from copyright law, is to determine the parties’ will. Rights of utilization for different kinds of use, whenever not explicitly determined, are granted as much as the contract requires it. We have here the classical situation of the author and exploiter. So permitting the archiving cannot automatically implicate the conveying of the property of the pictures. The assumption of a conveyance demands further incidents in the facts of the case. Just handing over alone, gives no grounds to assume a sales contract. This is still true in spite of the fact that a fee was invoiced – as long as the price does not meet the value of the pictures – as is the case here. This fee takes into account that the photographer performed in advance with producing the pictures. The publishing house, as the exploiter, has an interest in this service.

At the latest at the time of suing the publishing house, the photographer gave notice to the existing contracts. The plaintiff’s claim for return of property had not been forfeited in accordance with equity (Treu und Glauben) because the plaintiff disloyally late demanded the return. Equity, as codified in §242 BGB, contains the rule that if somebody has not taken advantage of his rights for a significantly long time and the other side has had reason to trust that these rights would not be exercised anymore, this right is then considered as forfeited. In the reported case, however, this argument does not hold because the timeframe for the use in the proprietor’s archive was to be over a longer and undetermined period. Therefore, it is unjust to argue that any right of the plaintiff to have his pictures returned might be forfeited.

In contrast to the defendant’s opinion, it can reasonably be demand that he checks his archives for pictures belonging to the plaintiff – in spite of all time required. The plaintiff’s rights cannot be voided just because the publishing house added the shots into its archive without the possibility to search for them by means of the plaintiff’s name. They should have taken care of this detail at the beginning.

Published on the old CMS: 2007/8/27
Read on the old CMS till November 2008: 79 reads

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