Warning letters concerning the unauthorised use of copyrighted images

Increasingly, individuals and legal entities are being approached by law firms, mostly from Germany, alleging that they presumably have used images belonging to their clients in breach of copyright. Typically, the internet is systematically searched using specialised software to identify protected images. This is then followed by a demand for substantial damages for the unlicensed use of the respective image, together with a request to sign a desist declaration with penalty clause. In addition, compensation for legal fees is often claimed as well. It appears that a veritable industry has developed in Germany comprising law firms specialising in issuing warning letters, which bombard, in particular, (German) Swiss individuals and businesses – who have, in most cases, unwittingly used one or more images from the internet – with standardised legal letters that can appear intimidating at first glance. However, anyone affected by such a claim should remain calm. Depending on the circumstances, the claims may be unenforceable altogether or, at the very least, unenforceable to the extent asserted.

As a general rule, since 2020, photographic reproductions of three-dimensional objects have also been protected in Switzerland under the Federal Act on Copyright and Related Rights (Copyright Act, CopA), even if they do not possess an individual character. The requirement of individual character, which was previously necessary for copyright protection, has been removed. In the cases described above, however, the law firms concerned generally rely on foreign law, particularly since the images in question are accessible worldwide via the internet and foreign law may therefore also apply to the relevant copyright infringement.

If someone uses an image that can be proven to belong to another party – for example, on a website or in any other document accessible on the internet – this generally constitutes a copyright infringement. The rights holder can usually prove the unauthorised use of the image quite easily. In such cases, exorbitant licence fees, a penalty payment and reimbursement of costs may be claimed. Claims for damages can, however, often (at least in part) be successfully challenged, particularly because the amounts claimed are frequently excessive. According to case law, damages are calculated, inter alia, on the basis of the amount that would have been payable for a licence to use the image in question. This depends on the context in which the image was used (e.g. for educational purposes or commercial use), the duration of the unauthorised use, and the group of persons to whom the image was unlawfully made accessible. A penalty surcharge of up to 100% may then be added to the amount that would have been payable for lawful use. Even so, the resulting total amount is generally still considerably lower than the amount initially claimed. The claimed compensation for legal fees must also be reviewed. These should be itemised and the amount should be reasonable.

Particular caution should also be exercised before signing a desist declaration with penalty clause. By signing such a declaration, the person concerned undertakes to pay the agreed contractual penalty in the event of a further infringement. Such desist declarations with penalty clause are, however, often drafted too broadly, and the penalties stipulated are frequently excessive. In summary warning letters concerning the unauthorised use of copyrighted images should be taken seriously, especially as, under current law, the elements of a copyright infringement are easily met. However, recipients should not be rushed into making payment and signing a desist declaration. The amounts demanded and the declarations requested are often unjustified in their scope or form. In cases of doubt, it is advisable to have the legal position and the claims asserted from a legal perspective.