GERMANY Trends and Developments Contributed by: Thomas Nägele, Steffen Henn, Anke Hofmann and Serpil Dilbaz, SZA Schilling, Zutt & Anschütz
that the work/design is a personal intellectual crea - tion. In the present case, the plaintiff failed to meet that burden. Portrait photo On 18 June 2025, the BGH ruled on the question of whether a right to information under Section 32d Para. 1 of the German Act on Copyright is excluded where the author made only a secondary contribution to a work, product or service. The facts of the case The appellant, a professional photographer, had been commissioned to produce photographs for a train - ing plan. A segment of one image was later used for the packaging of dietary supplements sold on the respondent’s website, an online marketplace and a teleshopping channel. The appellant considered this to be excessive commercial use of his work and sought an adjustment under Section 32a Para. 1 of the German Act on Copyright, as well as information and invoicing under Section 32d of the German Act on Copyright. The relevant provisions of the German Act on Copyright Section 32a - Author’s further participation (1) Where the author has granted to another a right of use on conditions which, taking into account the author’s entire relationship with the other party, result in the agreed remuneration proving to be dispropor - tionately low in comparison to the proceeds and ben - efits derived from the use of the work, the other party is obliged, at the author’s request, to consent to a modification of the agreement which grants the author further equitable participation appropriate to the cir - cumstances. It is irrelevant whether the parties to the agreement had foreseen or could have foreseen the amount of the proceeds or benefits obtained. Section 32d – Provision of information by and account - ability of contracting party (1) Where a right of use has been granted in return for payment, then at least once a year the contracting party provides the author with information about the
extent of the use of the work and the proceeds and benefits derived therefrom. [...] (2) Subsections (1) and (1a) do not apply insofar as 1. the author has made only a secondary contribution to a work, product or service, unless the author pro - vides clear indications based on verifiable facts that the information is needed in relation to the amendment of a contract (section 32a (1) and (2)); a contribution is, in particular, secondary where it has little influence on the overall impression created by a work or the nature of a product or service, for example because it does not belong to the typical content of a work, product or service, or 2. [...] The decision of the BGH The BGH recognised a right to information under Sec - tion 32d of the German Copyright Act that was not excluded by Section 32d Para. 2 No. 1 of the Ger - man Copyright Act. Whether a contribution is merely secondary depends on the specific circumstances of the case. In particular, the extent to which the author’s contribution shapes the overall work/product and eco - nomic factors such as its significance to the created value must be considered. In an advertising context, the contribution’s relevance to sales is particularly important. In the present case, the extensive use of the photograph across numerous packages indicat - ed that the contribution was not merely secondary. The portrait served as a key marketing instrument for dietary supplements signalling quality and expertise. Copyright infringement through conduct primarily taking place abroad In its ruling of 5 December 2024, the BGH considered the requirements for an infringement of German copy - right by acts that were primarily occurring abroad. The facts of the case The appellant discovered product photographs via Google Images that linked to websites under Kazakh and Ukrainian domains. The photographs themselves did not appear on the defendant’s German website. The appellant asserted exclusive rights in the product photographs and brought proceedings.
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