PRELIMINARY INJUNCTION RULING 

In the preliminary injunction matter 

of Ms. ... 
Applicant, 

- Proceedings Representatives: 
JBB Lawyers, 
Christinenstraße 18/19, 10119 Berlin,- 

a g a i n s t 

the ... 
represented by its chairman 
Defendant, 

it is commanded by way of preliminary injunction, due to special exigency without oral hearing, according to s. 935 ff., 91 ZPO: 

1. The Defendant is, in order to avoid a penalty to be ordained by the Court for every case of non-compliance of up to 250.000,00 EUR, alternatively arrest for disobedience to court orders, or an arrest of up to six months, the latter to be executed in the person of the party chairman, 
prohibited, 

to reproduce and/or make publicly available the following photo without naming the creator and adding the license text or its full internet address corresponding to the license terms of the Creative Commons license "Attribution ShareAlike 3.0 Unported": 

     [photo of Thilo Sarrazin] 

2. The Defendant has to bear the costs of the proceesings. 

3. The proceedings value is set to 4.000,00 EUR. 

Rationale: 

I. 
The Applicant has credibly shown the following: 

She has created the photo mentioned in the decision and released it for further use under the terms of the so-called Creative Commons license "Attribution ShareAlike 3.0 Unported". According to these terms, in case of use the creator must be named and there must be either a copy of the license text attached or the full internet address in the form of the Uniform Resource Identifier must be provided. The Defendant published the photo on its website under the address www.die-rechte.info without giving the aforementioned information. The applicant first took notice of the publication on September 9th 2010. 

II. 
This triggers the urgent entitlement to injunctive relief according to s. 97 ss. 1 in combination with s. 19a UrhG. 

The photo enjoys copyright protection as a photographic work in the meaning of s. 2 ss. 1 No. 5 UrhG or as a photograph in the meaning of s. 72 UrhG. As the Defendant put the photo on its website while in breach of the aforementioned license terms, this constituted a use not covered by the permission of the Applicant and thus an unlawful use in the meaning of s. 97 ss. 1 UrhG. 

The risk of recurrent infringement as a prerequisite for the entitlement follows from the occurrence of the breach; the risk could have been dispelled only by a declaration under penalty of law to cease and desist (BGH GRUR 1985, 155, 156 = NJW 1985, 191, 191 - Penalty up to ... ! - meintioning further sources). 

A preliminary ruling seems also "necessary" in the meaning of s. 940 ZPO, because the Applicant cannot be expected to tolerate a possible further infringement of her rights until main proceedings are run. 

The set value of the proceedings equals two thirds of the value of the main proceedings (see KG WRP 2005, 368, 369). 


Dr. Scholz      Klinger      von Bresinsky