A Facebook fan page can be created in minutes: upload photos, advertising texts, and logos. At first, it all seems very simple, but the devil is often in the details. Anyone who ignores image rights or publishes customer logos without permission risks expensive warnings.
In the second part of the interview with Socialmedia-Blog.Net, lawyer Niklas Plutte explains how online marketing managers can avoid faux pas and stay safe on Facebook, Twitter, and other social media platforms.
Mr. Plutte, what about photos that fans have published on a (commercial) Facebook timeline?
Are page operators obliged to intervene and remove the photos and, possibly, the posts?
Apart from the case where the owner of the Facebook page is aware of copyright infringement, there is no obligation to proactively check. The page operator does not have to check in advance whether the image infringes third-party rights. However, this changes if the rights holder informs them of the infringement. If they do not delete the image within a reasonable period, they are liable according to the principles of Störerhaftung. In response to a legal warning, a cease-and-desist declaration must then be submitted with a penalty clause. In addition, the page operator must reimburse the opposing party’s legal costs from a reasonable amount of the matter. If, on the other hand, they delete the image within the deadline, they are not yet a disturber – accordingly, neither legal fees nor a cease-and-desist declaration must be submitted.
I have heard from other bloggers that despite written permission (via email), a warning was subsequently issued. In this case, it was about a photo of a cosmetic product that the blogger had uploaded to his website with the company’s permission.
How can I, as a website operator, protect myself from a warning?
What does a legally sound permission look like that allows me to publish a specific photo on my website?
The case sounds strange at first glance. Normally, permission to use a photo via email is sufficient. There is no requirement for a written form (letter). The question is whether the permission in the case described here extended to the specific use of the photo. It could be, for example, that only publication on the blogger’s website was permitted, but not on social media channels. It is also conceivable that the blogger was granted permission by an unauthorized person, e.g., the cosmetics company, even though the photographer holds the copyright. I cannot give a general answer as to what legally flawless permission looks like in this context. We would have to know all the facts of the case. Lawyers warn against publishing a photo without the consent of the people depicted in it.
How should a website operator proceed (especially if you want to use the photo for commercial purposes)?
What type of declaration should you sign with the person?
Is an informal email always sufficient?
There are no formal requirements in these cases, so that, for example, verbal consent from the person depicted to use the photo for commercial purposes would be sufficient. However, since it must be clarified precisely for which usage actions rights are granted, the consent should be recorded in writing in a so-called “model release” contract to avoid later disputes. This can clarify, among other things, the context in which the image may be used (exclusive or non-exclusive, limited or unlimited in terms of space/time), whether the model will receive compensation or whether, for example, the model must be named. There are several model release templates circulating on the Internet, but some of them contain provisions that are not compatible with German law.
What do I need to consider if I want to publish a company logo on my website?
In which cases am I at risk of receiving a warning if I publish logos?
The use of third-party logos is not permitted if the sole purpose is to advertise one’s services more attractively. For example, in a case between Volkswagen and ATU, the Federal Court of Justice ruled that ATU is not entitled to use the VW logo, which is protected as a figurative mark, to advertise its repair services for VW vehicles (Federal Court of Justice, ruling of April 14, 2011, I ZR 33/10 – “Major inspection for everyone”). In such cases, it is sufficient to advertise one’s service with the words “Volkswagen” or “VW”. However, if goods from a brand manufacturer are offered and resold in an online shop, the brand logo in the shop can also be used for advertising. In these cases, the exhaustion principle regulated in Section 24 of the Trademark Act applies, according to which the manufacturer’s trademark rights expire when goods are lawfully placed on the market. In this case, the trademark owner cannot prohibit the buyer from using the trademark in the context of resale, even in the context of advertising (cf. BGH, judgment of 17 July 2003, I ZR 256/00 “Four Rings over Audi”).
On this basis, an online shop may, for example, advertise the resale of legally purchased Chanel perfume with the well-known crossed “C”s. In my opinion, however, publishing third-party logos on your website as a reference is only permitted with the consent of the respective company. The company will normally only agree to such a publication if there is a reason for it, such as an ongoing business relationship. However, this does not mean that you are automatically entitled to display a third-party customer logo on your website as a reference without the customer’s consent just because you have a business relationship with the customer.
Depending on the industry, the customer may have an interest in not being associated with the company in public. In addition, the logo may be protected by copyright in individual cases, depending on its design. To do this, the logo must demonstrate a minimum level of creativity (so-called “small change”), which the courts now accept under relatively few conditions.