The Upload Agreement for photographers applies to the upload, publication and sale of photos at Photocase.
Last revised: September 2016
1. Scope of application
The following agreement supplement the general Terms of Service and applies to all photograph uploads by the photographer and to the use of the photographs on the PHOTOCASE website.
2. Upload of photographs
(1) The photographer shall confirm, through uploading the photograph and agreeing to the Upload Agreement, that he holds the required rights for the intended use of the photograph on the PHOTOCASE site (cf. section 3) and that neither the photograph nor its commercial use infringe any third-party rights.
(2) The granting of the usage rights to PHOTOCASE under the Upload Agreement shall occur on the upload of the photograph by the photographer.
(3) The photographer undertakes to provide PHOTOCASE with his full name and address and to ensure that this information is up to date at all times.
(4) PHOTOCASE reserves the right to reject or delete photographs which do not meet the official PHOTOCASE criteria in terms of form and content. The photographer shall not have any say in whether a photograph is included or allowed to remain on the PHOTOCASE site.
3. Granting of usage rights
(1) The photographer shall grant PHOTOCASE a non-exclusive, transferable and sublicensable right, without restrictions as to place and time, to use the photograph in any given case on the PHOTOCASE site, as set out in the License Agreement for Photos. This shall most notably include the following acts of exploitation which are to be offered to end customers:
- (a) the right of communication to the public, i.e. the right of representation, the right of making available to the public (e.g. websites, applications or online advertisements), the right of broadcasting (e.g. TV) and the right of video and audio playback (e.g. recitals or performances) (cf. sections 19 - 22 of the German Copyright Act (UrhG));
- (b) the right of reproduction, distribution and exhibition, i.e. the right to physically reproduce, distribute and exhibit the photograph (e.g. for printed products, advertising materials or product packaging) and/or to have the photograph reproduced, distributed and exhibited (cf. sections 16 - 18 of the German Copyright Act (UrhG));
- (c) the right to adapt and transform the photograph (cf. section 23 of the German Copyright Act (UrhG)) and to produce works derived therefrom;
- (d) the right to transfer exploitation rights (cf. section 34 of the German Copyright Act (UrhG) and to sublicense the photograph;
- (e) the right to change the title of the photograph and the name of the copyright owner (cf. section 39 of the German Copyright Act (UrhG)) in order, for example, to make the photograph easier to find in a search with keywords, or to shorten the name of the copyright owner (e.g. from Johann Wolfgang von Goethe to J.W. v. Goethe).
(2) The photographer hereby authorises PHOTOCASE to waive its right to name the copyright owner in individual cases (cf. section 13 of the German Copyright Act (UrhG)) in accordance with the service offered by PHOTOCASE (cf. section 3.2 of the License Agreement for Photos so that the end customer can use the photograph under an extended licence without naming the author. The photographer will be paid an increased fee by way of recompense (cf. section 5).
(3) The photographer hereby authorises PHOTOCASE to make it possible to locate the photographs on the Internet using search engines and to permit the search engines or service providers to reproduce the photographs for illustrative purposes and to make the photographs publicly available.
(4) The photographer hereby grants PHOTOCASE the right to link content on the PHOTOCASE website with social media sites (e.g. Facebook or Twitter), encompassing all the relevant aspects, and to use the photographs to promote PHOTOCASE and to raise the profile and increase the popularity of the site. This may be by online means (e.g. using banners or layers) or by offline means (e.g. advertisements or posters). PHOTOCASE will name the photographer as the copyright holder in these contexts, insofar as this is technically possible.
(5) The end customers of PHOTOCASE shall obtain the right to post or share photographs directly or indirectly on social media sites, having due regard for the then applicable licence conditions. The photograph may be used on social media sites provided that the conditions of use of the relevant social media site do not include any policy whereby the operator is granted exclusive rights of use, other exclusive rights, or property rights to the photograph.
(6) In the event that PHOTOCASE receives an order from an end customer, the photographer shall further entitle PHOTOCASE to supply the relevant photograph as a print in the requested size and, to this end, to enlarge it or to have it professionally enlarged, to reproduce it by printing or comparable processes, and to sell the finished print to the end customer by way of physical distribution. The photographer will be paid a fee in accordance with section 5 from the proceeds earned in this way.
(7) PHOTOCASE reserves the right to allow the relevant photograph to be offered for licensing by third-party service providers, such as Internet photographic agencies. The photographer shall grant PHOTOCASE the usage rights required to this end, especially the right to grant or assign the required usage rights to the third-party provider for distribution by way of sublicence. The photographer will be paid a fee in accordance with section 5 from the proceeds earned in this way.
(8) Any rights which have been granted by PHOTOCASE to its end customers to use the photographs of the photographer shall remain in force in the event that the agreement between PHOTOCASE and the photographer is terminated. PHOTOCASE shall also be entitled to use the photographs for internal archiving and reference purposes.
4. Prosecution of copyright infringements
It is in the legitimate interest of PHOTOCASE to ensure that neither its end customers nor third parties use the photograph in a way which infringes the usage rights which have been granted or without actually acquiring usage rights. PHOTOCASE shall therefore be authorised by the photographer to prosecute infringements of copyright and ancillary rights to the photograph and to assert the relevant rights and claims.
5. Remuneration and settlement of account
(1) PHOTOCASE will share the proceeds earned from the use of the photographs with the photographer according to the terms set out below:
(2) If a photograph has been downloaded using paid-for download credits or in return for direct payment, the photographer will be entitled to 40% of the net amount paid to PHOTOCASE by the end customer for the licence. The percentage share may increase to up to 60% of the net amount if the photographer is a long-term user of PHOTOCASE or achieves very high numbers of sales. The photographer can log into his personal account on the PHOTOCASE site to see his current percentage share and point score.
(3) The term "net amount" shall always refer to the balance remaining after deductions from the gross amount paid by the end customer to allow for any statutory value added tax, any discounts granted to the end customer, affiliate costs for a new end customer acquisition, and fees charged by the payment service provider.
(4) The percentage shares specified in section 5 paragraph 1 shall also apply to discounted purchases in individual cases (e.g. using a discount code) or to downloads of collections on which bulk discounts have been granted. The percentage shall always depend on specifically what was used or how much had to be paid for the actual download.
(5) The share specified in section 5 paragraph 1 will also apply to any prints which are ordered and paid for (cf. section 3 paragraph 6) and in respect of any third-party distribution (cf. section 3 paragraph 1).
(6) PHOTOCASE will credit the user account of the photographer with the amount earned from the download of his photograph in any given case. The photographer may view his credit balance at any time by logging into his personal account on the PHOTOCASE site.
(7) PHOTOCASE will arrange payment when the balance has reached at least EUR 100.00 and the photographer has requested payment when managing his personal affairs on the PHOTOCASE site. In exceptional cases and at the express request of the photographer, a payment can be made when the credit balance has reached EUR 10.00. Possible methods of payment include bank transfer (SEPA, IBAN+BIC) or PayPal. Increased bank charges incurred for transfers to an account outside the EU shall be shared between PHOTOCASE and the photographer.
(8) If the photographer still has remaining credit on his account on expiry of the usage agreement, this will be paid out 14 days after the termination of the licence agreement regardless of the amount in the account.
(9) The photographer will be issued with a regular credit advice by PHOTOCASE with the payment of the balance.
(10) The payment pursuant to section 5 shall fully and conclusively cover all transfers of rights of the photographer under the Upload Agreement.
6. Requirements in respect of the photograph
(1) The photographer shall ensure and guarantee that he owns the rights to the photograph in any given case which are required for its use on the PHOTOCASE site (cf. section 3) and that the photograph does not infringe any third-party rights (e.g. held by licensees or represented persons).
(2) PHOTOCASE prohibits the inclusion of photographs which are of a slanderous or insulting nature, which contain pornographic, obscene or sexually degrading images, or which are racist or gratuitously violent.
7. Warranty and liability of the photographer
(1) The photographer shall be subject to the statutory rights in respect of warranty claims and shall be liable to PHOTOCASE under the statutory provisions.
2) Having regard to section 6 and section 2 paragraph 1 and the obligations of the photographer set out therein, the photographer shall fully exempt PHOTOCASE from all liability and all costs, including any costs of legal defence and court proceedings and any damages which may need to be paid, in the following cases:
- if a claim is made against PHOTOCASE for non-performance or defective performance of the licence agreement entered into with the end customer because the contractual rights to use the photograph had not been granted or had not been satisfactorily granted, if and insofar as this situation is due to neglect on the part of the photographer in his duty to grant rights to PHOTOCASE
- and/or if third parties assert claims against PHOTOCASE for breach of their copyright, ancillary rights, personal rights (including the right to their own images), trademark rights or other rights to the photograph.
(3) PHOTOCASE shall notify the photographer immediately of the claim and give him the opportunity to avert the claim insofar as this is legally necessary and/or possible. The photographer shall provide PHOTOCASE with the necessary proof of his entitlement to use the photograph as intended on PHOTOCASE (e.g. by sending the model release) and with any other information which he has about the circumstances.
8. Liability of PHOTOCASE
(1) Claims for damages or claims for reimbursement of expenses incurred in vain which are asserted by the photographer shall be governed by the above clause regardless of the legal nature of the claim.
(2) PHOTOCASE will be fully liable for damages arising from injury to life, limb or health due to wilful or negligent breach of duty on the part of PHOTOCASE. Concerning other liability claims, PHOTOCASE will only be fully liable for absence of the warranted quality characteristics and for wilful intent and gross negligence./p>
(3) PHOTOCASE will only be liable for slight negligence in case of a breach of such duty as is fundamental to the actual fulfilment of the contract, the neglect of which would jeopardise the accomplishment of the purpose of the contract and on the discharge of which the photographer may routinely rely (cardinal duty). In case of breach of a cardinal duty, liability will be limited to such damages as are reasonably foreseeable or typical under such contracts. This shall also apply to lost profit and unrealised savings. No liability will be accepted for other remote losses and consequential harm caused by defects.
(4) The above provisions shall also apply in favour of employees, representatives and vicarious agents of PHOTOCASE.
(5) Statutory liability under the law on product liability will remain unaffected.
(6) If the photographer is a merchant as defined by the German Commercial Code (HGB), a legal entity under public law or a special fund under public law, any liability claims against PHOTOCASE shall be subject to a limitation period of one year.
9. Final provisions
(1) PHOTOCASE reserves the right to make changes to the Upload Agreement. These changes shall not affect the fundamental contractual duties to be discharged by the parties. The photographer will be given at least two (2) weeks' notice of the amended provisions before they enter into effect. If the photographer does not dispute the validity of the new Upload Agreement within two (2) weeks (of receipt of said notification), the amended Upload Agreement shall be deemed to have been accepted. PHOTOCASE will issue a separate notification advising of the import of the time limit, the right of objection and the legal consequences of remaining silent in the event of amendments.
(2) Any amendments or supplements to the Upload Agreement must be made in writing. The requirement for written form shall also apply to the revocation of the requirement for written form itself.
(3) The photographer shall not be entitled to set off against claims of PHOTOCASE unless his own claims are undisputed or recognised by declaratory judgement.
(4) The laws of the Federal Republic of Germany shall apply to the exclusion of all international and supranational (contract) legislation, especially the United Nations Convention on Contracts for the International Sale of Goods. The binding contract language shall be German.
(5) If the photographer is a merchant, a legal entity under public law or a special fund under public law, the registered office of PHOTOCASE shall be the place of jurisdiction for all disputes arising from the contract.
(6) Should individual clauses of the Upload Agreement be or become invalid, this shall not affect the validity of the other clauses. The invalid provision shall then be replaced by a clause which comes closest to the commercial objective of the parties. The same shall apply if the Upload Agreement contain loopholes.