Damages for copyright infringement
- under Section 97 of the German Copyright Act (UrhG)
What Creators, Brands, and Companies Really Need to Know
—10 Practical Tips for the Creative Industry.
Whether it’s music, film, photography, social media, sports, fashion, or the press—anyone who uses someone else’s creative content without properly clarifying the rights risks facing substantial claims for damages. And anyone who fails to consistently protect their own works is throwing money away. This article provides a practical explanation of how damages work under German copyright law, which recent court rulings have changed the rules of the game—and which specific strategies are worthwhile for both sides.
Table of Contents
1. Why Section 97 of the Copyright Act is the most important provision in copyright law
Section 97 of the German Copyright Act (UrhG) is the primary legal basis for anyone seeking to monetize or defend their creative works. The provision provides the injured party with three powerful tools: an injunction, removal of the infringing material, and—in cases of fault—compensation for damages. For the entertainment and creative industries, this is the foundation upon which disputes of all sizes are resolved.
The provision applies to everyone without exception: the photographer whose images appear on a stock photo agency’s website without permission, the musician whose track is used in an advertising clip, the filmmaker whose footage is circulating on social media, the fashion brand that prints a copyrighted design on T-shirts—and even the influencer who “just quickly” reposts an image.
2. The Three Pillars of Damages — and Why the Right to Choose Is Worth Its Weight in Gold
German copyright law provides for what is known as the "three-fold calculation of damages." The injured party may freely choose between three methods of calculation:
Actual damage
The injured party must demonstrate the specific financial loss (e.g., lost contracts, loss of revenue) resulting from the injury. In practice, this is often difficult because the causal link between the injury and the specific damage must be proven.
License analogy
By far the most common method of calculation. The question is: What would the infringer have had to pay if they had simply obtained a license? A hypothetical license fee is determined—one that reasonable contracting parties would have agreed upon. It does not matter whether the injured party would have been willing to grant a license at all—nor does it matter whether the infringer ever sought a license.
Surrender of the infringer's profits
The infringer must surrender the profits derived from the infringement. In doing so, only those costs that can be directly attributed to the infringing activity are deducted from the proceeds (the so-called partial cost method). General overhead costs are generally not deductible.
Practical Tip #1
The right to sue does not expire until the claim has been satisfied or a judgment has become final. This means that the calculation method can still be changed even while the lawsuit is ongoing. A wise rights holder will first request information and an accounting, gain an overview of the infringer’s financial figures—and then decide which method will yield the highest return.
Practical Tip #2
The three methods of calculation must not be combined (the so-called "prohibition on combining methods"). However, in addition to the chosen method, one may also claim damages not covered by any of the three methods—such as damages resulting from market disruption or damage to reputation.
3. License Analogy in Practice: Tariffs, MFM Recommendations, and VG Bild-Kunst
The licensing analogy is the gold standard for calculating damages. But how does one determine the “reasonable” license fee?
The courts follow this hierarchy:
First, they examine whether the injured party has its own licensing practice—that is, whether it grants licenses itself and achieves verifiable prices for doing so. If so, these prices serve as the first point of reference. If there is no such practice, rates from collecting societies are consulted, particularly those of VG Bild-Kunst and GEMA. In addition, the MFM recommendations (Mittelstandsgemeinschaft Foto-Marketing) play an important role, especially in the field of photography. The Federal Court of Justice (BGH), however, urges caution here: The MFM recommendations are not automatically decisive. For simple, non-professional product photos, they may be too high; for photos by well-known photographers, they may even be too low. If there is no basis for determination, the court freely estimates the license fee pursuant to § 287 of the German Code of Civil Procedure (ZPO).
Practical Tip #3
If no directly applicable rate exists—for example, because the infringer’s business model does not correspond to any traditional type of use—the rate that most closely matches the nature and scope of the exploitation must be applied. The Higher Regional Court of Cologne made this point abundantly clear in its recent “Dombilder” ruling of May 23, 2025.
4. The “Dombilder” ruling by the Higher Regional Court of Cologne (2025): New Standards for Image Databases
In its ruling of May 23, 2025 (Case No. I-6 U 61/24 — “Cathedral Images”), the Higher Regional Court of Cologne issued a decision of great practical significance. The case: A photo agency offered millions of images for licensing via its website, including numerous photographs of the interior of Cologne Cathedral, some of which also featured the famous Richter Window. The owner of the cathedral took legal action against this.
Key takeaways for practice:
If photos of a building are offered for licensing in an image database without the property owner’s permission, the damages are calculated according to the principles of triple damages—just as in traditional copyright law.
In selecting the appropriate tariff, the Higher Regional Court of Cologne examined the matter closely: The VG Bild-Kunst tariffs under Group A (Commercial Use and PR) were not applicable because the business model of an image database does not constitute commercial use in the traditional sense. Instead, the court applied Group D (commercial use of information services/providers)—because this most closely matches the nature and scope of the actual exploitation.
However, since Group D also does not perfectly reflect the business model of an image database—particularly because the agency offered sublicenses for any purpose—the court doubled the calculated fee. For 220 images over an estimated period of 22 months, the court thus arrived at damages of approximately 24,772 euros for copyright infringement alone. An additional 9,960 euros was awarded for 9 photos of the famous Richter Window in the cathedral.
Practical Tip #4
Image databases and stock photo agencies face a significant liability risk. The Higher Regional Court of Cologne made it clear that they are liable as direct infringers—not as privileged host providers. They cannot claim that the photographers uploaded the images on their own. Anyone operating an image database must structure their business model in such a way that legal violations remain manageable. The court expressly rejects the argument that “our business model cannot function any other way.”
5. The Federal Court of Justice’s “Coffee” Ruling (2024): Implied Consent as a Defense
The Federal Court of Justice (BGH) reached a very different conclusion in its ruling of September 11, 2024 (Case No. I ZR 140/23 — “Coffee”). The case: A photographer sold a photograph he had taken (of a coffee cup with coffee beans) as a photo wallpaper—without attributing the copyright and without any restrictions. A tennis center purchased the wallpaper and installed it in its guest area. A web agency created the tennis center’s website, photographed the guest area with the visible photo wallpaper, and used a screenshot of that website as a reference on its own site.
The photographer’s image rights agency sued the web agency for damages. Without success.
The key points of the Federal Court of Justice’s ruling for legal practice:
Anyone who sells a photograph as a photo wallpaper without restrictions, without a copyright notice, and without a reservation of rights thereby implicitly consents to all customary uses. This includes photographing the decorated rooms and publishing these photos on the internet—by the users themselves, but also by contracted service providers such as web designers or real estate agents. This consent even extends to the service provider’s own advertising, for example in the form of showcase projects on their website.
Implied consent does not need to be explicitly stated to the specific infringer. It is sufficient for the rights holder’s conduct to convey, from the perspective of an objective third party, that the use is permitted.
The principles of implied consent and the limitation provision of § 57 UrhG (insignificant incidental elements) coexist—one does not exclude the other.
If a photographer does not have a copyright notice affixed to a photograph sold as a photo wallpaper, this generally constitutes a conclusive waiver of the right to be named as the author under § 13, sentence 2 UrhG.
Practical Tip #5
For photographers and creators, this is a warning sign. Anyone who distributes works without restrictions and without a copyright notice may lose their rights—not through a legal transaction, but as a result of their own conduct. The solution: Always include a copyright notice and clearly communicate the terms of use when marketing your work. A copyright notice on the photo wallpaper, in the contract, or in accompanying documents would have made all the difference in the “Coffee” case.
Practical Tip #6
For users and service providers, the ruling is good news: Anyone who photographs rooms and thereby captures photo wallpaper, murals, or other decorative elements is generally not acting unlawfully—as long as the copyright holder has made their work available to the public without restrictions. Nevertheless, caution is advised: As soon as a copyright notice, a reservation of rights, or other restrictions are recognizable, implied consent no longer applies.
6. Blame: Why “I didn’t know” almost never helps
Damages under Section 97(2) of the German Copyright Act (UrhG) require fault—that is, intent or negligence. It sounds harmless, but it is a double-edged sword. This is because case law imposes extremely high standards of care:
Anyone wishing to use third-party copyrighted works must ascertain the existence of such protection and the scope of their own right to use the work. There is a comprehensive duty to examine and inquire. Since acquisition in good faith is excluded under copyright law, the entire chain of rights must be thoroughly verified.
Relying solely on a licensor’s assurance is not sufficient. Even reliance on the retained attorney does not protect against negligence. Commercial exploiters—producers, publishers, broadcasters, editors, agencies—are subject to an enhanced duty of care.
Anyone who is clearly operating in a gray area of what is legally permissible is already acting negligently if they must consider the possibility of a contrary judicial ruling. The infringer bears the risk of legal error.
Practical Tip #7
An infringer who is initially not at fault loses their good faith at the latest upon receiving a valid cease-and-desist letter. From that point on, if they continue to use the material, they are acting in bad faith in any case. Therefore, every cease-and-desist letter should be taken seriously and reviewed by a lawyer immediately—even if you believe you are in the right.
7. The 100% surcharge for failure to credit the author
One of the most practical considerations: What happens if the author is not credited when the work is used?
According to the case law of the Federal Court of Justice (BGH), failure to name the author can result in a doubling of the license fee. The reasoning: Due to the lack of attribution, the author misses out on potential follow-up commissions and recognition—this constitutes measurable material damage, which is compensated for with a flat 100% surcharge on the notional license fee.
In addition, in cases of serious violations of moral rights, compensation for non-pecuniary damages may also be considered—for example, in cases of distortion of the work or the attribution of a work to a third party. This claim for non-pecuniary damages exists alongside the claim for pecuniary damages.
Practical Tip #8
For creators and photographers, this means: Always insist on attribution—in contracts, in the terms and conditions, and in the file metadata. If attribution is missing, this constitutes a separate claim for damages, which significantly increases the total amount of damages sought. Conversely, for users: Attribution costs nothing, but in the event of a dispute, it may save you half the damages.
8. GEMA monitoring surcharge: Double fee for music use
One particular provision applies to the music industry: In cases of unauthorized use of the rights it administers, GEMA may charge a flat-rate monitoring surcharge of 100% of the standard rate. The rationale for this lies in the particular vulnerability of so-called “small music rights”—their widespread use in restaurants, hotels, nightclubs, and at events largely eludes effective monitoring.
This surcharge is, however, an exception. The Federal Court of Justice (BGH) has consistently rejected its extension to other areas of copyright law whenever infringements can be detected through normal market monitoring.
Practical Tip #9
Event organizers, restaurant owners, hotel operators, and event managers should always clarify GEMA licensing requirements before the event. Those who pay only after the fact—or not at all—end up paying twice.
9. Information and Accounting: The First Step Toward Money
Before the injured party can quantify their damages, they need information. The law therefore grants them extensive rights to information: the infringer must provide information regarding the scope, duration, nature, and economic consequences of the infringing act and account for them.
Important: The right to information also extends to facts relevant to monitoring and may encompass other similar acts beyond the specific infringement that has been established. Anyone who refuses to provide information or provides incomplete information risks being required to make an affidavit, facing coercive measures, and suffering significant procedural disadvantages.
In the “Dombilder” decision, the Higher Regional Court of Cologne also confirmed that the end date of the use must be disclosed—because only then can the injured party fully calculate their damages. The duration of the infringement is a key factor in calculating damages by analogy with licensing, because rates are typically tiered according to duration.
10. Compensation for emotional distress: When it’s about more than just money
Section 97(2), sentence 4 of the German Copyright Act (UrhG) grants authors, photographers, and performing artists a right to compensation for non-pecuniary damages as well—provided that there has been a serious and lasting infringement of the moral rights of the author.
Typical cases include the mutilation or distortion of a work, the infringement of the right of first publication, the incorrect or omitted attribution of authorship in particularly egregious cases, and the use of a work in a derogatory context.
This claim for non-pecuniary damages exists explicitly alongside the claim for pecuniary damages—it is therefore not an either/or situation, but a both/and one.
Practical Tip #10
Compensation for non-economic damages is often underestimated. It can be substantial, particularly in cases involving prominent creative professionals or especially provocative infringements. For example, the Berlin Court of Appeal awarded 10,000 and 14,000 euros in compensation for non-economic damages for the destruction of works of art at a mini-golf course.
11. Industry-Specific Information
Music and Film: In addition to GEMA licensing, special caution is required when it comes to film music. The GEMA tariffs VR-AV DT-H3 for background music in video games and the tariffs for cover mounts are recognized in case law as guidelines. Film producers must clarify music rights separately—dubbing rights are not automatically included in film production rights.
Photography and the Press: The MFM recommendations are a helpful starting point but not a guarantee. Professional market participants can use them as a guide; discounts are appropriate for amateur photos or private eBay sales. Media companies face heightened liability: Editors and publishers are subject to an increased duty of care.
Social Media and Influencers: Reposting, sharing, or embedding third-party content can also constitute a copyright infringement. Use under Creative Commons licenses is only protected if all license terms are complied with—particularly the attribution requirement. Violations of the license terms render the license agreement void, and standard principles of damages apply.
Fashion and Merchandising: The reproduction of copyright-protected designs on textiles is a classic example. The complaint in the “P.P.” merchandising lawsuit illustrates the typical procedure: injunction, disclosure of quantities and selling prices, determination of liability for damages, third-party disclosure regarding origin and distribution channels—and only then the quantification of damages.
Sports and Events: Event organizers are liable for the use of music at their events, for the unauthorized broadcast of sports recordings, and for the commercial use of photos and videos taken on their premises.
12. Conclusion: If you know your rights, you’ll benefit more from them
Copyright law is no paper tiger. The threefold calculation of damages, the strict requirements regarding fault, the broad scope of disclosure claims, and the possibility of compensation for non-economic damages make Section 97 of the German Copyright Act (UrhG) one of the most powerful instruments of German civil law.
The following applies to creators, artists, and rights holders:
Actively protect your work. Include copyright notices, establish clear terms of use, document your licensing practices—and don’t hesitate to consistently pursue legal action against infringements. Current case law strengthens your position, as long as you do your homework.
The following applies to companies, brands, and users:
Take copyright seriously. Verify the chain of rights, obtain licenses, credit the creator, and document your rights of use. The cost of a license is almost always lower than the cost of a lawsuit for damages—not to mention the damage to your reputation.
The rulings by the Federal Court of Justice (“Coffee,” 2024) and the Higher Regional Court of Cologne (“Dombilder,” 2025) clearly demonstrate that copyright law is a dynamic field that is constantly evolving. Those who stay up to date have a clear competitive advantage—on both sides of the table.