Eine interessante Entscheidung eines US-Bundesgerichtes (Moberg v. 33T LLC et al., 2009 WL 3182606 (D. N.J. Oct. 6, 2009)) betreff Urheberschutz und Klagemöglichkeit in den USA; dem vorliegenden Fall lagen Fotografien zugrunde, die auf einer deutschen Webseite veröffentlicht worden waren. Der Fotograf wollte nun gegen deren unberechtige Verwendung in den USA vorgehen. Im folgenden eine Veröffentlichung auf der Webseite www.monday.com. Wenn Verfahrensdokumente gewünscht werden, bitte an NIETZER & HÄUSLER wenden.
Autoren: Frankfurt Kurnit Klein & Selz
United States: Were Photos Published On German Website Simultaneously Published In U.S. For Purposes Of U.S. Copyright Law? In a case addressing the intersection of the Copyright Act, the Berne Convention, and the Internet, a federal court in New Jersey has held that photographs published on a German website were not simultaneously published in the U.S. under U.S. copyright law. As a result, the photographs were not „United States work(s)“ and the photographer could advance a copyright infringement action without first registering his copyright in the U.S.
Hakan Moberg first published the photographs — a series of studies of a woman titled „Urban Gregorian I-IX“ — on a German gallery website in 2004. Subsequently, five of Moberg’s photographs appeared on three website design company websites as free graphics available to the design company clients. Two of the defendant’s websites were registered to a Delaware corporation.
When the defendants failed to promptly remove his photographs, Moberg filed a complaint in the U.S. alleging copyright infringement under the U.S. Copyright Act and the Digital Millennium Copyright Act.
The defendants asked the court to dismiss the case. They argued, among other things, that the court lacked jurisdiction because the photographer had not registered his copyright in the photographs with the U.S. Copyright office. Section 411(a) of the Copyright Act states that „no action for infringement of the copyright in any work shall be instituted until registration of the copyright claim has been made [or rejected] in accordance with this title.“ For purposes of section 411, a „work is a United States work only if … in the case of a published work, the work is first published … simultaneously in the United States and another treaty party or parties . . . .“
Facing an issue not decided by any U.S. court, the court found that publication via a website did not constitute simultaneous publication throughout the world: „The proposition that publishing a work on a website automatically, instantaneously, and simultaneously causes that work to be published everywhere in the world, so that the copyright holder is subjected to the formalities of the copyright laws of every country which has such laws is contrary to the purpose of the Berne Convention.“ The court refused to adapt a rule that would „require an artist to survey all the copyright laws throughout the world, determine what requirements exist as preconditions to suits in those countries … and comply with those formalities ….“
The case strikes a blow for uniformity in international copyright law – a fundamental policy behind the Berne Convention.
