In a decision dated 19 January 2015, Ref.: 2 Sa 861/13, the Cologne Regional Labour Court ruled that a Facebook user may copy photos that another Facebook user has published on Facebook and that are accessible to the general public for private use.
The Regional Labour Court stated in this regard:
"According to Section 72 UrhG, irrespective of the question of whether a photograph constitutes art or merely a representation, Part 1 of the Copyright Act also applies to photographs. According to this, according to § 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 first claimed that the photographs or image files in the plaintiff's possession had been published on its Facebook page and on the page of the producing photographer. In this case, it is incumbent on the defendant to prove and show that these pages were not publicly accessible. Even if a Facebook page is public for friends, they can copy an image there. This copying is then not obviously unlawfully produced within the meaning of Section 53 (1) UrhG. Further copies thereof are accordingly also possible and permissible for private use under Section 53 (1) UrhG. The plaintiff bears the full burden of proof that the pictures were never published at all or that copies of them were made unlawfully. It is irrelevant whether the rights of use to the photos were granted to the plaintiff at all pursuant to § 29 in conjunction with § 31 UrhG. Since she did not allow herself to be photographed without her consent, it cannot be established that the original copies were obviously produced unlawfully. With regard to the possession of the copies, the same results as already stated above with regard to the plaintiff's claim: Since there is no imminent dissemination of the images, mere possession is permissible under § 22 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 if you have any questions on this topic.
Goldberg Attorneys at Law 2015
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
E-mail: info@goldberg.de
