In a ruling dated 23 May 2025 the 6th Civil Senate of the Cologne Higher Regional Court (OLG Cologne) ordered a photo agency to pay damages to the owner of Cologne Cathedral and the artist Gerhard Richter in a dispute over copyright, among other things (6 U 61/24).
The photo agency had previously offered over 200 photos in its database for commercial use without obtaining the necessary licenses. The photos depicted the interior of the cathedral and the Gerhard Richter-Window.
Course of court proceedings
The photo agency maintains a database where millions of photos are publicly offered for licensing to third parties. This is where the owner of the cathedral and the artist Gerhard Richter found the photos in dispute.
In the preliminary proceedings in 2022, the OLG Cologne and the Cologne Regional Court (LG Cologne) found that the photo agency should not have offered the photos for commercial use due to a lack of a license (8 O 419/19 - LG Cologne; 19 U 130/21 - OLG Cologne).
The photo agency was ordered, among other things, to cease and desist and pay damages for the violation of property and house rights (§903, §1004 (1), §823 (1) of the German Civil Code (BGB). In the appeal proceedings, the OLG Cologne confirmed this assessment.
With regard to the photos showing the judge's window, both courts awarded damages for copyright infringement pursuant to §§97 (2), 15, 16, 19a, 2 (1) number 4, and (2) of the Copyright and Related Rights Act; UrhG.
The OLG Cologne reduced the amount of damages, which was originally set at 100.000 €. It ordered the photo agency to pay 35.000 €.
The Gerhard Richter-Window
The famous Gerhard Richter-Window is a façade window in the south transept of Cologne Cathedral, designed by the German artist Gerhard Richter.
It consists of over 11.000 squares of mouth-blown genuine antique glass, each featuring a variety of colorful hues. The placement of the various squares and colors was determined half by a random generator, and the other half of the window mirrors them.
Cathedral master builder Barbara Schock-Werner commented: "This enormous cathedral window is something quite extraordinary. Its size alone demands a special artistic achievement." Gerhard Richter is an "artist with such an incredibly fine sense of color, a confident handling of large surfaces, and a sensitive feel for unusual structures [...]."
Copyright in art law
One purpose of copyright as a cultural right is to protect works of art such as the Richter Window as intellectual creations in their creative aspect under art law. It exists alongside industrial property rights such as design, patent, and trademark law (See also the BGH-Ruling on drone phones in copyright law).
In particular, copyright law in art law provides uniform protection for creative achievements. This is because, provided the work is a "personal intellectual creation" of a person, copyright protection arises free of charge and directly for the author (§2 (2) UrhG).
This uniform protection is ensured by the protection of property rights (including commercial exploitation rights) and moral rights. It is uniform because the special moral right is inherent in them as a fundamental right, and because they are "intertwined in many ways" and form an "inseparable unit" (Bundestag Printed Paper 1965 IV 270, p. 43).
In certain cases, use without permission and without remuneration may be possible. However, a statutory limitation of copyright law must exist for this (such as §59 (1) sentence 1; §57 UrhG).
Moral Rights
Moral rights protect the author's intellectual and personal relationship to their work under art law (§ 11 sentence 1, §§12 et seq. UrhG).
On the one hand, this includes the right of publication (cf. §§12 (1), 6 (1), and 15 (3) UrhG). This allows the author to decide whether to make their work accessible to the public. This provision in art law takes into account the fact that the author exposes themselves to public criticism.
On the other hand, the author is protected in their free decision to (not) acknowledge authorship (§13 sentences 1 and 2 UrhG). Furthermore, the author can defend themselves against any impairment or distortion of their work in accordance with §14 UrhG.
The Property Rights
The property rights, which include exploitation rights, concern the commercial use of the work as exclusive rights (§§15 et seq. UrhG). They grant the author certain rights to their work and, as remuneration claims under art law, ensure "fair remuneration for the use" of the work by third parties (cf. §11 sentences 1 and 2 UrhG).
In §15 (1) UrhG, the law stipulates that the author has the exclusive right to exploit their work in physical form (cf. also §§31 et seq. UrhG).
This includes, in particular, the reproduction right, which only allows the author to make copies of the work (§16 UrhG). It also includes digital copies of the work, such as posting and retrieving it on the internet and digitizing the work. It can also be applicable if only a part of the work is reproduced.
According to §17 UrhG, the author has the right to place the work or copies on the market or offer them to the public at his or her own discretion. The author also has the right to exhibit the work (§18 UrhG).
In art law, the law grants the author the exclusive right of public communication in intangible form pursuant to §15 (2) UrhG.
This also includes the right to make the work "available to the public, by wire or wireless means, in such a way that it is accessible to members of the public from a place and at a time of their choosing" pursuant to §19a UrhG.
Other rights include the right of recitation, performance, and presentation (§19 UrhG), the broadcasting right (§20 UrhG), the right of communication by means of video or audio recordings (§21 UrhG), and the right of communication of broadcasts and of making available to the public (§22 UrhG).
Author's Claims in the Event of Infringement
In the event of an unlawful infringement of copyright or another right protected by this law, the infringer has the option under copyright law to demand cessation and removal of this infringement (§ 97 (1) UrhG).
In addition, copyright damages can be claimed under art law if "the act was committed intentionally or negligently" (§97 (2) UrhG). Standards for calculating damages have been developed in supreme court jurisprudence.
What specific ruling did the court make regarding copyright law?
The court first established that the Richter window is undisputedly a copyrighted work pursuant to §2 (1) number 4 UrhG.
Insignificant accessory
The photo agency argued that a statutory limitation precluded the copyright infringement. Since the Gerhard Richter-window "does not represent the main subject, but is only visible in the background" in some photos, it is not protected as an insignificant accessory under §97 UrhG.
This limitation permits, among other things, the reproduction of works "if they are to be regarded as insignificant accessories alongside the actual subject."
The OLG Cologne followed the case law of the Federal Court of Justice (BGH). According to this, the limitation is only applicable if the work "can be omitted or replaced without this being noticeable to the average viewer or without the overall effect of the main subject being influenced in any way" (Federal Court of Justice GRUR 2015, 667 para. 27 - Furniture Catalog).
It found that the Gerhard Richter-window has a clear thematic relationship to the main subject, the interior of Cologne Cathedral, and is therefore significant for the entire photo. In addition, the Gerhard Richter-window and the artist Gerhard Richter himself are widely known. It is not possible to replace this motif without influencing the overall effect.
Violation of Review Obligations
A significant part of the decision concerned the photo agency's violation of its independent review obligations with regard to image rights. The photo agency must have committed these infringements negligently (cf. §97 (2) UrhG).
The court examined the photo agency's structure and business model in order to determine the scope of its review obligations with regard to image rights. The business model is structured in such a way that the photo agency obtains exploitation rights to the photos from the photographers in advance through cooperation agreements.
These rights are submitted independently by the photographers on the website. After being marked with the photo agency's trademark, the photos are offered on the website as part of the database, and the rights to them are transferred to third parties for a fee.
The photo agency argued, with regard to the viability of its business model, that it cannot and does not have to review the image rights itself. Therefore, it relied on the fact that the photos were legally obtained from the photographers.
The court rejected this argument and found that this approach disregarded the responsibility for the business model they operated. The photo agency itself was responsible for verifying and legally licensing the photos.
The photo agency had therefore at least negligently violated its duty to verify by failing to verify, or failing to sufficiently verify, the legality of the use.
Assessing the Amount of Damages Based on the License Analogy
With regard to the amount of damages, the court conducted a new assessment and reversed the decision of the Cologne Regional Court (cf. §287 of the Code of Civil Procedure; ZPO).
The focus of the assessment was the application of the license analogy standards, which the lower court had already applied. This is supreme court jurisprudence concerning the standards for reasonable fictitious license fees in the event of unlawful use.
Using the license analogy, the "conclusion of a license agreement under reasonable conditions" is fictitious. The license fee is considered reasonable if "reasonable contracting parties would have agreed upon it; this is the objective, factually reasonable value of the use of the right […]."
The specific calculation should be based on the injured party's own calculation practices. Thus, in this case, the court used the rates of the Verwertungsgesellschaft-Kunst (VG-Kunst) to determine the reasonable remuneration for use.
In contrast to the lower court, however, the court applied a different tariff category (item D), as it was closer in scope and purpose to the image database of the photo agency. Based on these principles, it awarded 35.000 € in damages.
Résumé
The decision specifies the duty of review imposed on photo agencies as operators of photo databases that do not receive their content directly from the author. Before publishing, they must independently verify that they have the necessary usage rights and that the uploading of the photos is legally permissible.
"The ruling clarifies that photographers' assurances do not release platform operators from their own duty of review. They must independently ensure the legality of the content and adapt their business model if necessary," says dtb-lawyer and expert in copyright and art law Leon van Lee.
Status 13.08.2025