Developers of websites and online shops frequently provide their clients with comprehensive online stores and web presences. Consequently, contracts for the creation of an online shop or a website often encompass legal texts, images, photographs, product descriptions, and other textual content.
Subsequently, photographs are often sourced from other websites or existing 'stock' without acquiring adequate usage rights for these images. Similarly, product descriptions, brand logos, and legal texts such as General Terms and Conditions (GTC) are sometimes adopted from other internet presences.
The website or online shop is then launched, and shortly thereafter, companies receive cease-and-desist letters for copyright and/or trademark infringements from the respective rights holders, due to their use of images and/or texts for which they lack proper authorization.
Unfortunately, this scenario occurs more frequently than anticipated.
The same question invariably arises: Was the developer of the website/online shop contractually obligated to integrate the images, texts, brand names, and brand logos into the shop or onto the website?
The Regional Court of Bochum recently adjudicated a clear-cut case concerning this issue. In the matter before the Regional Court of Bochum, a company had undertaken the development of a lawyer's online presence. The agency utilized photographs for which it had not secured the requisite rights. Consequently, the lawyer was not authorized to feature the contested photographs on his website. He was subsequently subjected to claims for injunctive relief and damages by the rights holders of the photographs. The lawyer then pursued a claim for damages against the company that developed his website, citing a breach of contractual obligation.
The Regional Court of Bochum ruled in this instance that the company had breached its contractual obligations under the agreement with the lawyer for website development. Consequently, it was compelled to fully compensate the lawyer for the incurred damages.
The case adjudicated by the Regional Court of Bochum serves to clarify for both clients and contractors that a contract for the development of an online shop and/or a website must explicitly define the rights and obligations of each contracting party.
From the perspective of agencies and developers of online shops and websites, it is strongly advised to only incorporate photographs into web presences for which the end-user of the website will also acquire the appropriate rights for the specific type of use. Consequently, no images should be integrated into websites or online shops if the developer of the web presence is uncertain about the existence or scope of rights pertaining to these images. Nevertheless, agencies frequently utilize existing images with an unclear legal status, often to minimize costs.
This practice is strongly discouraged.
The same principle applies to the use of texts and product descriptions. If an agency contractually commits to creating content for a website and/or online shops, only proprietary texts should be utilized. Should texts be procured from external copywriters, the corresponding usage rights must also be acquired.
Clients commissioning websites and online shops are also strongly advised to formalize the contract for the development of the web presence or online shop in writing, incorporating clear stipulations. It is imperative to establish unequivocally who is responsible for providing the content for a website.
From a liability standpoint, we also strongly caution developers of websites and online shops against drafting legal texts and providing them to clients.
Please do not hesitate to contact us if you have any questions on these topics.
Source: Judgment of the Regional Court of Bochum dated 16.08.2016, file number: 9 S 17/16
Goldberg Attorneys at Law 2016
Lawyer Michael Ullrich, LL. M. (Information Law)
Specialist Lawyer for Information Technology Law (IT Law)
Email: info@goldberg.de
