On 18.06.2025 (case no. I ZR 82/24), the BGH issued a judgement on the obligation of the licensee to provide information to the author in accordance with Section 32d UrhG. The BGH emphasises that the elimination of the duty to provide information due to a “subordinate contribution” depends largely on the promotional significance of the work for product sales.
Facts of the case
The plaintiff – a professional photographer – photographed the defendant’s managing director on 29 July 2011 on behalf of the defendant. He charged € 180 for the entire shoot. The defendant cut out a portrait from one of the images, added the name and signature of the managing director and applied the motif to the packaging of around 25 product categories of its food supplements, which it sold both in its own online shop and via a teleshopping channel and other retailers. According to the photographer, the image was originally only intended for a training plan; extensive use on packaging was not foreseeable when the contract was concluded.
Since 2016, the plaintiff has therefore demanded detailed information on all utilisations based on Section 32a UrhG (reasonable subsequent remuneration) and Section 32d UrhG (annual information) in order to be able to recalculate his fee claim.
Legal standards
- section 32d UrhG obliges the exploiter to provide the author with information at least once a year on the type, scope, income and benefits of the utilisation of the work. However, the obligation to provide information does not apply if the author’s contribution is merely “subordinate” (Section 32d (2) no. 1 UrhG). This is the case if the author’s contribution has little impact on the overall impression of a work or the nature of a product or service, for example because it is not part of the typical content of a work, product or service. However, such an exclusion does not apply if the author provides concrete evidence for a necessary contractual adjustment in accordance with Section 32a UrhG.
- section 32a UrhG entitles the author to a further appropriate share by adjusting the contract if the agreed remuneration is subsequently disproportionately low compared to the user’s income. In order to determine this disproportion, the remuneration and income must first be determined and then the ex-post reasonable remuneration must be determined on the basis of the actual scope of use. Disproportionately low remuneration is generally assumed if the agreed remuneration would amount to less than half of the appropriate remuneration.
The BGH confirmed the right to information. In particular, the portrait photo did not constitute a subordinate contribution pursuant to Section 32d (2) no. 1 UrhG because it characterises the recognisability of the entire product line and is relevant to sales as a marketing tool. The products are presented by the managing director herself in teleshopping, among other things; the image enables viewers to make a direct visual connection between the person and the product. It is also economically significant that the photo appears in 25 to 23 product categories in various web shops – a large-scale use that excludes a merely subordinate service.
With regard to a possible claim for additional remuneration pursuant to Section 32 a UrhG, the Senate considered it plausible to assume that the remuneration was disproportionate. A single product photo is already valued at around € 80 on the stock market; in relation to thousands of packaging uses, the objective value exceeds the € 180 paid many times over. This also gives rise to a right to information pursuant to Section 32 d UrhG.
Practical advice
If photos – especially images of people – are later used on a larger scale or for central advertising purposes, Section 32d UrhG provides authors with a powerful instrument to demand transparency about the use each year. A “subordinate contribution” hardly exists if the image characterises the recognition value of an entire product range. To avoid disputes, creatives should stipulate clear purposes and methods of use and a subsequent remuneration clause in licence agreements.
Manufacturers and retailers who use photos of people or testimonials on packaging, websites or in teleshopping should carefully document and regularly evaluate licence agreements. A one-off payment in the low three-digit range harbours a considerable risk of subsequent remuneration if the image has a sales-promoting effect. It is also advisable to set up information systems in order to fulfil annual transparency obligations and avoid unjustified legal costs.
With this judgement, the BGH has placed the economic function of creative contributions at the centre. Anyone who makes an image the flagship of their products must not only pay appropriately, but also disclose how much it pays off.