Despite the clear contribution of the photographer, an advertising photo can justify co-authorship of the art direction: no protection of the motif, but protection of the arrangement. At the same time, the Regional Court of Cologne highlights the practical sticking point: detailed briefings, sketches and direction can tip the balance of rights – and quickly make portfolio/reference use prone to disputes without clear contractual clauses.
Brief overview: Facts
A professional photographer was commissioned by a major client (former main sponsor of a professional sports club) to take an advertising photo for a campaign. The defendants, two creative professionals and partners in an agency, which was also sued as a civil law partnership, had previously prepared a detailed photo briefing with sketches and specific guidelines for the motif. With this preparatory work and the corresponding instructions from the photo briefings, the plaintiff then created the photograph. The two agency creatives were not further involved in this process. The final advertisement motif then appeared in particular on a website of the defendants as a reference for their services. The plaintiff had also used the photo as a reference advertisement on his website. The plaintiff then issued a warning to the defendants, demanding information and fictitious licence fees (€5,000) and warning costs.
The Regional Court of Cologne (judgment of 12 November 2025 – 14 O 5/23) dismissed the action as unfounded.
Key statements of the court
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The two agency creatives and the photographer are joint authors of the photograph due to the staged motif.
- In the case of a staged scene, joint authorship pursuant to Section 8 (1) of the German Copyright Act (UrhG) may exist between the photographer and the designers of the motif-defining arrangement if the contributions cannot be exploited separately. The court considered the agency creatives to be joint authors because their sketches and specifications had pre-structured the defining message and scenery of the work; the photographer realised the photographic work on this basis. The creation of an arrangement may give rise to co-authorship of a photographic work, provided that the creation of this arrangement is protectable in itself. The court affirmed this in the present case
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Reference/portfolio use by co-authors
- Among co-authors, consent to exploitation may not be refused in bad faith (Section 8 (2) sentence 2 UrhG). The specific use – not directly commercialising – as a reference in one’s own portfolio is generally acceptable in the relationship between co-authors; the photographer was not allowed to prohibit the reference use by others because he himself used the motif as a reference.
Passive legitimacy
- Among co-authors, consent to exploitation may not be refused in bad faith (Section 8 (2) sentence 2 UrhG). The specific use – not directly commercialising – as a reference in one’s own portfolio is generally acceptable in the relationship between co-authors; the photographer was not allowed to prohibit the reference use by others because he himself used the motif as a reference.
Practical note
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Contractual clarity regarding co-authorship
- Creative projects with staged scenes should document roles and contributions transparently (briefings, sketches, directing/art direction services) and address co-authorship – if desired – in the contract. The ruling shows that detailed, motif-defining specifications can establish co-authorship.
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Portfolio/reference clauses
- Co-authors should mutually regulate the use of portfolios (scope, media, naming, any blocking periods). Without explicit exclusion, consent to the use of references within the co-authorship community cannot be refused in bad faith pursuant to Section 8 (2) sentence 2 UrhG.
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Self-promotion by service providers
- Even outside of co-authorship constellations, reference use (e.g. screenshots of completed projects; photos) is common practice in the industry and may be covered by implied consent. Nevertheless, an explicit contractual provision is also recommended regarding the scope of any use of logos (trademarks) of the contractual partner. In principle, it also applies that, in the context of an exclusive granting of rights of use, the author must expressly reserve the right to use the work for their own reference purposes.