The German lawyer Robert Fechner has been representing photographers from various countries in copyright infringement cases on the Internet on behalf of PhotoClaim for years. The warnings are formulated in an aggressive tone and contain high demands on the website operators, including warning costs and damages. But is the procedure of lawyer Fechner legal? Read here what you should do if you receive a warning from lawyer Fechner from Berlin.
PhotoClaim - the system behind the warning letters from the German lawyer Fechner
The German lawyer Robert Fechner works closely with PhotoClaim, an online service that helps photographers to track down unauthorised use of their photos on the internet. The operator of PhotoClaim is PhotoClaim Sp. z o.o., based in Warsaw, Poland.
Photographers can register on PhotoClaim for free, upload their photos there and PhotoClaim automatically searches the Internet for uses. PhotoClaim then always commissions "German contract lawyers," including attorney Fechner, to issue warnings. The cooperation is based on a win-win agreement where revenues are shared.
What photographers who have worked with PhotoClaim and other agencies have to say about the way such agencies work can be found here, for example.
Lawyer Robert Fechner (Fechner Legal) and his tactics for photo warnings
First of all, the person being warned receives a request to submit a cease-and-desist declaration with a penalty clause and to provide information on the type and duration of the photo use. In a further e-mail, they are then asked to pay warning costs and damages.
Fechner currently calculates the warning costs on the basis of a cease-and-desist value of 12,000 EUR per picture and a 1.5 business fee.
For damages, he uses the MFM table as a basis and also demands a 100% surcharge for lack of copyright information as well as interest. If you are affected by such a warning, you should definitely seek professional help.
Domestic reference and infringement of German Copyright Law - What you should know
Attorney Fechner always refers to paragraphs of German copyright law in the warning notices, regardless of whether the offending website was written in German or in another language.
However, German copyright law is only infringed if the photo is used on a website that is at least also directed at users from Germany. This is generally only the case if the website on which the picture was used was in German.
Attorney Fechner, however, also warns against the use of photos on websites that are written in languages other than German. In these cases, German copyright law is unlikely to be infringed due to the lack of a domestic reference. Claims under German copyright law cannot then be asserted.
Copyright infringement: Damages under German Copyright Law
If a photo is used on a German website without the photographer's permission, this usually constitutes a violation of German copyright law, unless the use is covered by a copyright exception.
As an author, you are generally entitled to damages in Germany if your copyright has been infringed. Damages can be calculated in three different ways:
- Lost profit (rarely relevant in practice): Here the profit is calculated that the author would have made by exploiting the work himself if it had not been used by the infringer.
- Surrender of the infringer's profit (rarely relevant in practice): Here the profit that the infringer has made through the copyright infringement is determined.
- Payment of a fictitious licence fee (relevant in practice): The calculation of damages according to the so-called licence analogy assumes that the parties would have concluded a licence agreement on reasonable terms. The starting point are the licences that the author usually demands and can actually enforce on the market. In case of doubt, the author must prove that he can actually obtain the demanded licence fee on the market, for example by presenting licence agreements. If this is not the case, existing remuneration rules in the respective market can be used as a basis for calculating damages. In the field of photography, the so-called MFM table is often used for this purpose.
How does Fechner Legal calculate damages?
Attorney Fechner also calculates the damages as a rule according to the MFM table. However, recourse to the MFM table is not permissible in every case. In the past, German courts have rejected recourse to the MFM table in the following cases:
- The "photographer" issuing the warning is merely an amateur photographer.
- The dissuading photographer makes his photos available free of charge, for example on Flickr or Pixelio.
- Neither the warning party nor the person being warned reside in Germany.
Fechner Legal: Unjustified and excessive warning costs
According to German case law, warning costs are only to be reimbursed if the photographer issuing the warning is obliged internally to pay the warning costs demanded by the person being warned to the law firm issuing the warning. It is more than doubtful whether the photographers have committed themselves to lawyer Fechner to pay the warning costs, as they cooperate with Photoclaim. According to the information on Photoclaim's website, the photographers do not bear any costs. Regardless of this, the warning costs demanded by Fechner also appear excessive in terms of their amount.
Robert Fechner: Fine by the Italian Competition Authority for Unfair Business Practices
The warning practice of lawyer Fechner and the PhotClaim business model is not only controversial in Germany. In Italy, too, lawyer Fechner came under criticism with his mass warnings of Italian micro-enterprises for the use of photos on websites.
An Italian lawyer reported on 20.10.2022 on https://www.lexology.com that the Italian competition authority (AGCM) imposed fines totalling 45,000 EUR on the warning duo "Fechner-PhotoClaim" on 03.10.2022. Photoclaim was fined EUR 35,000 and lawyer Fechner was fined EUR 10,000 for using unfair business practices, according to the AGCM. Fechner had pressured numerous small Italian companies with warning letters and demands for high warning costs and damages, citing infringement of German copyrights. Excerpt from the article by the Italian lawyer's colleague:
“The AGCM's inquiry showed that Photoclaim and Mr Fechner had sent a considerable number of standardised cease-and-desist letters to Italian small businesses on the grounds of infringement of moral rights and copyrights on photographs published online. The letters, however, did not provide any evidence of the rightsholder’s mandate, or of the ownership of the claimed rights or the true nature of the photograph.
Moreover, in the Authority's opinion, not only the contents but, above all, the manner of Photoclaim's and Mr Fechner's communications were so peremptory as to induce the addressees to adhere to the settlement proposal, regardless of the actual extent and infringement of a copyright, effectively depriving them of freedom of choice. Specifically, reference was made to a conduct defined by the Authority as contrary to professional diligence, including requests to sign settlement agreements containing, inter alia, admissions of liability, procedures to force adherence to vexatious clauses, imprecise references to the application of German law and jurisdiction, and so on.”
Practical advice for those who have been warned by the German lawyer Robert Fechner (Fechner Legal)
If you have received a warning letter from the PhotoClaim lawyers Robert Fechner (Fechner Legal) or Martin Zielinski for the use of photos on websites or on social media, you should by no means comply with the demands hastily. Instead, we recommend that you instruct lawyers specialising in German copyright law to review the warning and the claims asserted therein.
Even if a copyright infringement has occurred, this does not mean that the demanded warning costs and damages are justified.
A cease-and-desist declaration with a penalty clause should never be issued rashly and without due consideration. This is because there is a risk of high contractual penalties in the event of a breach. After a cease-and-desist declaration has been issued, lawyer Fechner checks whether it has been breached and claims contractual penalties.
As a lawyer specialising in copyright law, I am very familiar with the relevant rulings of German courts and possible points of attack against copyright warnings for the use of photographs.
I have already represented numerous German and foreign website operators who have been warned by lawyer Robert Fechner / Marcin Ziliensky and know exactly what course of action is recommended in the event of a warning.
Warning letter by German lawer Fechner?
Do not submit a cease and desist declaration!
Do not pay anything! First inform! I advice you too!