News in the case Geeksisters v. HGM-Press

Most of you probably remember the warning letter that the blog operated by employees of ours Geeksisters received. A very brief summary: Geeksisters posted an image that went viral through blogs and (presumably afterwards) was licensed by a German company, which then issued a warning letter to the blogs. More details can be found in our article at the time.

Now there is news: We have won :) At least the first instance, the judgment is not yet final and HGM could appeal. HGM had until 13.6.13 to submit further information to the court. They did so, and not in short supply: a total of 15 pages of further reasoning and over 50 pages of annexes. There were quite a few interesting things on various aspects:

The legal assessment:

Here, HGM lost the case for the time being because they could not prove the so-called chain of rights without any gaps. The exact problem was that HGM could only present emails from Ms. Pitcher (the photographer) that were supposed to prove the transfer of rights to a British company (BNPS) and this British company then transferred the rights to HGM. However, since Ms. Pitcher had previously posted the photos on her company's Facebook page, among other places (at the time she was still happy about the free advertising from the shares...), the judge assumed that the rights must have been held by Ms. Pitcher's company, Northstar Cakes Ltd. But if that was the case, Ms. Pitcher, as a private individual, could not pass on the rights to the photos at all. The judge therefore assumed that HGM had no so-called active legitimation. However, you need this to be able to issue a warning or take legal action for illegal use. By the way, you have active legitimation if you have the exclusive rights of use, i.e. it would not have helped if Ms. Pitcher had passed on the rights to her company and to HGM or the British company at the same time.

The moral assessment:

Here we or most bloggers assume that HGM only licensed the images in this and other cases after the bloggers had already distributed them. This means that the attention generated by the bloggers was then used to find images that could later be used to issue a warning. It was never entirely clear whether this really happened and unfortunately the documents that HGM submitted to the court do not really shed any light on this. What is interesting, however, is that HGM claims that its partner in the UK spoke to Ms. Pitcher on the phone between 29.07.2012 and 08.08.2012. On 29.07. Ms. Pitcher published the pictures on Facebook and on 08.08. Ronny vom concentrated feed mixing plant was the first to post the picture in Germany. Before that, however, the picture had probably also been published in British newspapers and on 9gag but unfortunately we have no proof of this. In order to assess whether the British company discovered the picture before "the internet scene", it would have been interesting to know exactly when the phone call with Ms. Pitcher took place. Perhaps HGM or the British company BNPS deliberately left this open by specifying a time period and not an exact day for the telephone call? Incidentally, HGM naturally claims in court that they do not subsequently buy rights to Internet hypes. In addition, however, it is of course more than unpleasant when an author is initially happy about his photo being shared, but then at some point later has a warning issued for a fee....

Incidentally, HGM also submitted invoices from the sale of similar pictures in the court proceedings. In some cases, prices of between EUR 1000 and 3000 were paid to HGM! It would be interesting to find out how much of this money reaches the authors. I suspect that it is not very much... However, the amount of the invoices makes it clear that HGM has a great interest in maintaining the business with such images and this is probably only against us bloggers, because we also publish such images very often and very quickly, often making them really well known in the first place. It's in the nature of things that you can't always wait for a response from the author before you post a picture, as the hype may already be over by then. Incidentally, HGM also has a similar problem, because otherwise they would conclude watertight contracts with the authors and would probably not have had such problems in court.

So the whole thing shows once again: we need a reform of copyright law to keep the Internet as it is! Of course authors should be paid for their services, but this must become much simpler. How would it be, for example, if when uploading an image you also had to specify how much you would like to be paid for the use of the image? Then these payments could also go directly to the authors and nobody would be able to issue warnings to bloggers who distribute things that the author originally agreed to share. But what happens now with our case? HGM has until the beginning of August to lodge an appeal. If they do not do so, the judgment will become final and we will then publish it here again in full. If they do (and in the case of Ronny from Kraftfuttermischwerk they have already done so), the proceedings will go to the next instance. However, no new evidence may then be introduced, so it looks rather unlikely that HGM will win...