In a decision dated January 19, 2015, Ref.: 2 Sa 861/13, the Regional Labor Court of Cologne ruled that a Facebook user is permitted to copy for private use photos published by another Facebook user on Facebook that are accessible to the general public.
The Regional Labor Court stated the following:
„Pursuant to § 72 of the German Copyright Act (UrhG), Part 1 of the Copyright Act also applies to photographs, regardless of whether a photograph constitutes art or merely an illustration. Accordingly, under § 53 UrhG, reproductions for private use may be made of photographs that were either not obviously unlawfully produced or not obviously unlawfully made accessible. The defendant initially claimed that the photographs or image files in the plaintiff's possession had been published on her Facebook page and on the page of the photographer who created them. In this case, the burden of proof and substantiation lies with the defendant to demonstrate that these pages were not publicly accessible. Even if a Facebook page is public for friends, they can copy an image from it. Such a reproduction is then not obviously unlawfully produced within the meaning of § 53 (1) UrhG. Further copies thereof are consequently also possible and permissible for private use under § 53 (1) UrhG. The plaintiff bears the full burden of presentation and proof that the images were never published at all or that copies thereof were unlawfully produced. It can remain undecided whether the usage rights to the photos were granted to the plaintiff at all pursuant to § 29 in conjunction with § 31 UrhG. Since she did not, in any case, allow herself to be photographed without her consent, it cannot be established that the original reproductions were obviously unlawfully produced. Regarding the possession of copies, the same applies as already stated above concerning the plaintiff's claim: Since no dissemination of the images is imminent, mere possession is permissible under § 22 of the German Art Copyright Act (KunstUrhG) in conjunction with § 53 UrhG.“
A Facebook user may thus copy photos published on Facebook for private use, but may not publish the copied photos without consent.
Please do not hesitate to contact us should you have any further questions on this matter.
Goldberg Attorneys 2015
Attorney Michael Ullrich, LL.M. (Information Law)
Specialist Attorney for Information Technology Law
Email: info@goldberg.de
