1 Application of the General Terms and Conditions

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1.1 Scope of Application

The production of photographs, films, videos, reels and other static, moving or hybrid audiovisual content, hereinafter collectively referred to as the “Recordings”, as well as the granting of licences in respect of existing Recordings, shall be carried out exclusively on the basis of the following General Terms and Conditions.

These General Terms and Conditions shall also apply to all future production and licensing agreements unless expressly agreed otherwise.

These General Terms and Conditions shall apply from …………… (insert date). All previous General Terms and Conditions shall cease to be valid from this date.

1.2 Third-Party General Terms and Conditions

Any terms and conditions of the Client that deviate from the following provisions shall not be recognised. Such deviating terms and conditions shall not become part of the agreement even if the Photographer does not expressly object to them.
 

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2 Production Assignments

Production assignments comprise the creation of Recordings by the Photographer on behalf of the Client.

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2.1 Cost Estimate

Cost estimates provided by the Photographer are non-binding. The Photographer shall only be required to notify the Client of an increase in costs if the originally estimated total costs are expected to be exceeded by more than 15%.

2.2 Authorisation to Engage Third Parties

Where it is necessary to engage the services of a third party or to enter into another agreement with a third party in connection with the performance of the assignment, the Photographer shall be authorised to enter into the relevant obligations in the name and for the account of the Client.

2.3 Briefing

The Client’s briefing shall form the basis for the Recordings and calculations to be prepared by the Photographer. The Client shall provide the Photographer with a complete and final briefing in text form, for example in the form of minutes of a meeting, by email or by comparable means.

Where the Client does not provide the Photographer with a briefing in text form, the pre-production meeting, PPM, the previous email correspondence between the Client and the Photographer, as well as any written records of the PPM and telephone notes prepared by the Photographer from memory, shall form the basis for the creation of the Recordings.

2.4 Artistic Discretion

When creating the Recordings, the Photographer shall have artistic discretion, while nevertheless being required to comply with the Client’s binding specifications resulting from the briefing, the PPM and/or oral or telephone instructions.

Complaints and/or notices of defects relating to the artistic discretion exercised by the Photographer are excluded. Any subsequent requests for changes by the Client shall require a separate agreement and shall be subject to separate remuneration.

2.5 Notices of Defects

Where the Client or a person authorised by the Client is present during the production of the Recordings, that person shall, insofar as this is possible and reasonable under the circumstances of the production, immediately inspect the Recordings for identifiable defects and notify the Photographer of such defects without delay, so that the Photographer has an opportunity to remedy the defects or create new Recordings.

Where no immediate notice of defects is given, the Recordings shall, to that extent, be deemed to have been accepted as being in accordance with the agreement.

Where neither the Client nor a person authorised by the Client is present during the production of the Recordings, the Photographer shall transmit the Recordings to the Client after their completion. The Client shall inspect the transmitted Recordings for identifiable defects without delay.

Where the Recordings are defective, the Client shall notify the Photographer of this in text form without delay, but no later than 14 days after receipt of the Recordings, and shall describe the alleged defect with sufficient specificity.

Where no notice of defects is given within this period, the Recordings shall be deemed to have been accepted as being in accordance with the agreement.

2.6 Availability of the Client

Where neither the Client nor a person authorised by the Client is present during the production of the Recordings, the Client shall ensure that the Client or an authorised representative remains continuously available to the Photographer, at least by telephone and electronic means of communication, for example by email, SMS or comparable means, for consultations and decisions required at short notice.

2.7 Client’s Duties to Cooperate

Where the Client is required to provide information, goods, for example products or recipes, approvals or other items necessary for the production of the Recordings, or where the Client assumes responsibility for other tasks relevant to the production, for example booking photographic models, locations or catering, the Client shall ensure that delivery, provision, access to locations, arrival of photographic models and all comparable requirements take place in good time, so that production of the Recordings can begin punctually at the agreed time.

As soon as the Client becomes aware that timely delivery, provision, access to the location, arrival of photographic models or comparable requirements will not be possible, the Client shall notify the Photographer without delay.

Where this results in a delay to the production of the Recordings and the cause of the delay lies within the Client’s sphere of responsibility, the Client shall bear all costs arising from the delay, for example additional hotel accommodation, additional location days, bookings of photographic models, stylists, make-up artists, assistants, rebookings and comparable expenses.

The Photographer’s fee shall also be included among the costs arising from the delay.

2.8 Clearance of Rights and Releases

Unless otherwise agreed in an individual contract, the Client shall, in the case of Recordings of persons and Recordings of objects that are subject to third-party copyrights, ownership rights or other third-party rights, be responsible for obtaining the consent of the persons depicted and of the relevant rights holders required for the creation and use of the Recordings in accordance with the German Art Copyright Act, Kunsturhebergesetz, KUG, the General Data Protection Regulation, GDPR, and any other applicable statutory provisions.

In such cases, the Client shall indemnify the Photographer against claims for compensation brought by third parties as a result of a breach of this obligation. The obligation to indemnify shall not apply where the Client proves that the Client was not at fault.

The preceding provision shall also apply where the Photographer personally selects the persons or objects to be recorded, provided that the Photographer informs the Client of the selection in sufficient time to enable the Client to obtain the necessary declarations of consent or to select and provide other suitable persons or objects for the production of the Recordings.

2.9 Handling of Supplied Items

The Photographer may handle items supplied by the Client for the production as follows:

Where the items supplied by the Client are perishable goods, for example food, they shall be disposed of by the Photographer following completion of the production.

Where the items supplied by the Client are non-perishable items, for example clothing, they shall be returned to the Client following completion of the production at the Client’s expense.

2.10 Selection of the Recordings

The Photographer shall select the Recordings presented to the Client for acceptance upon completion of the production.

Subject to full payment, rights of use shall only be granted in respect of those Recordings that the Client accepts as being in accordance with the agreement.
 

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3 Fees, Additional Costs and Invoicing

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3.1 Termination by the Client

Where the Client terminates the agreement before completion of the recording work, the Photographer shall retain the right to the agreed fee.

However, the Photographer shall deduct any expenses saved as a result of the termination of the agreement, any income earned through the alternative use of the Photographer’s working capacity, and any income that the Photographer maliciously fails to earn through such alternative use, Section 648 of the German Civil Code, Bürgerliches Gesetzbuch, BGB.

3.2 Cancellation Fee

Where the recording work cannot be carried out for reasons for which neither the Photographer nor the Client is responsible, for example adverse weather conditions, illness, force majeure or official orders, the Photographer shall be entitled to a cancellation fee amounting to 50% of the agreed fee, unless the Client proves that the Photographer suffered no loss or substantially less loss.

3.3 Overrunning the Scheduled Time

Where the time scheduled for the recording work is substantially exceeded for reasons for which the Photographer is not responsible, an agreed flat-rate fee shall be increased accordingly.

Where a time-based fee has been agreed, the Photographer shall also receive the agreed hourly or daily rate for the additional time by which the recording work is extended.

3.4 Additional Services

Additional services, in particular the creation of Recordings beyond the scope determined at the commencement of the agreement, shall be remunerated separately on the basis of the time required.

3.5 Additional Costs

In addition to the fee owed, the Client shall reimburse the Photographer for all additional costs incurred in connection with the performance of the assignment, for example costs relating to digital image processing, photographic models, make-up artists, stylists, travel and comparable expenses.

3.6 Due Date of the Fee and Advances on Costs

The production fee shall become due upon delivery of the Recordings.

Where a production is delivered in separate parts, the corresponding portion of the fee shall become due upon delivery of each respective part.

Where performance of an assignment extends over a longer period, the Photographer may request instalment payments corresponding to the work already performed.

Additional costs shall be reimbursed as soon as they have been incurred by the Photographer.

The Photographer shall also be entitled to request reasonable advances on costs.

3.7 Transfer of Rights of Use

The Client shall acquire the copyright-related rights of use in the Recordings only after full payment of the fee and reimbursement of all additional costs.

3.8 Electronic Invoicing

The Photographer shall be entitled to issue invoices in electronic form and transmit them electronically to the Client, Section 14 of the German Value Added Tax Act, Umsatzsteuergesetz, UStG.

The Client consents to the electronic issuing and electronic transmission of invoices.
 

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4 Archive Material

Archive material comprises Recordings held in the Photographer’s archive in respect of which the Photographer grants the Client licences of use to the extent individually agreed in each case.

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4.1 Material for Review

Archive material requested by the Client from the Photographer’s archive shall be made available solely for review and selection.

No rights of use shall be transferred by making archive material available for review and selection. Any use shall require the Photographer’s prior consent in text form.

The use of archive material as working material for sketches or layout purposes, as well as its presentation to customers, shall already constitute use subject to payment.

4.2 Licence Fee

The contractually agreed licence fee shall be payable for the granting of rights of use in the Photographer’s archive material.

Where no licence fee has been expressly agreed by contract, the licence fee payable by the Client shall be determined in accordance with the current image licensing fees published by the Mittelstandsgemeinschaft Fotomarketing, MFM.
 

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5 Rights of Use

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5.1 Individual Grant of Rights of Use and Self-Promotion

The Client shall acquire rights of use in the Recordings only to the extent specified in the agreement.

Unless expressly agreed otherwise, the Client shall acquire only non-exclusive rights of use in the Recordings. Ownership rights shall not be transferred.

Irrespective of the rights of use granted to the Client, the Photographer shall remain entitled to use the Recordings for the Photographer’s own promotional purposes.

5.2 No Transfer to Third Parties

The transfer and/or granting to third parties of rights of use acquired by the Client shall require the Photographer’s prior consent in text form.

This shall also apply where the relevant third parties are affiliated group companies, subsidiaries, distribution partners of the Client or other editorial departments of a publishing company.

The Photographer shall be entitled to make consent to the proposed third-party use conditional upon payment of an appropriate licence fee.

5.3 Use on Social Media Platforms

Use of the Recordings on social media platforms, for example Instagram, Facebook, TikTok, LinkedIn or comparable platforms, shall require a separate agreement unless rights of use for social media platforms have already been expressly granted.

The Client acknowledges that operators of social media platforms regularly obtain extensive rights of use in uploaded content under their terms of use and may technically process, reproduce and make such content available to third parties.

When using the Recordings on social media platforms, the Client shall, insofar as technically possible and reasonable, preserve any existing technical protective measures, metadata and opt-out notices applied by the Photographer.

5.4 No Editing and No Use as a Reference

The Recordings may, as a general rule, only be used in their original form.

Any alteration or modification, for example montage, photographic manipulation or colourisation, as well as any alteration to the reproduction of an image, for example publication of cropped sections, shall require the Photographer’s prior consent.

The only exception shall be the correction of unintended blurring or colour deficiencies by means of digital retouching.

Without the Photographer’s prior consent, the Recordings may also not be used as references for recreated Recordings, illustrations, graphic representations or other works or content based on the Recordings.

5.5 Credit of Authorship

Whenever the Recordings are published, the Photographer shall be identified as the author.

The credit shall be placed directly alongside the respective Recording.

5.6 Use of the Recordings for Artificial Intelligence, AI

Without the Photographer’s prior consent, the Recordings supplied to the Client, including their metadata, may not be:

1. used for the training, development or optimisation of artificial intelligence systems, AI systems;

2. entered into datasets, databases or other collections intended for AI systems or for text and data mining purposes;

3. deliberately made available to third parties for the purpose of AI training, AI development or text and data mining.

The preceding restrictions shall also apply to the use of components of the Recordings, metadata and any data, datasets or other machine-readable information derived from the Recordings.

This shall not apply to the publication of the Recordings in accordance with the agreement, in particular on the internet and, where the relevant rights of use have been granted, on social media, provided that the publication does not predominantly serve the purpose of making the Recordings available for AI systems or text and data mining purposes.

The Client may not remove or modify any notices, metadata or other machine-readable information applied by the Photographer that prohibit the use of the Recordings for text and data mining or AI training purposes, opt-out notices.

Insofar as technically possible and reasonable, the Client shall preserve such opt-out notices when publishing the Recordings in accordance with the agreement.

The granting of corresponding rights of use shall require a separate agreement and separate remuneration.

5.7 Specimen Copies

At the Photographer’s request, the Client shall provide the Photographer, free of charge and within a reasonable period, with a specimen copy or equivalent evidence of use, for example a printed publication, digital file or internet link.
 

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6 Provision of Data, Archiving and Image Data

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6.1 Provision of Data and Data Format

Following completion of the assignment, the Photographer shall provide the Client with the selected Recordings and the associated data, files and data carriers, collectively referred to as the recording material.

The parties shall determine the data format by mutual agreement.

Where no determination is made, the Photographer may select a suitable data format and an appropriate data carrier.

The provision of RAW files or comparable raw-data formats shall require a separate agreement.

The Photographer shall not be obliged to archive the Recordings covered by the agreement on the Photographer’s own data carriers and provides no guarantee that the recording material will remain available after it has been handed over to the Client.

6.2 Digital Transmission

The transmission of digital Recordings by remote data transmission or on data carriers shall only be permitted insofar as the exercise of the granted rights of use requires this form of reproduction and distribution.

6.3 Archiving

The Recordings may be digitally archived only for the Client’s own purposes and only for the duration of the relevant right of use.

Storage of the Recordings in online databases or other digital archives accessible to third parties shall require a separate agreement between the Photographer and the Client.

6.4 Image Data

The Client may neither modify nor remove the EXIF, IPTC and/or XMP data contained in the files of the Recordings.

To the extent technically possible and reasonable, the Client shall take appropriate measures to ensure that this data is preserved during every transmission of data, every transfer of image data to other data carriers, every display on a screen and every public presentation.

This shall apply in particular to authorship information and machine-readable notices excluding text and data mining or AI training, opt-out notices.
 

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7 Liability

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7.1 Scope of Liability

The Photographer shall be liable for damage caused intentionally or through gross negligence by the Photographer or the Photographer’s agents or assistants.

In the event of a slightly negligent breach of material contractual obligations, cardinal obligations, the Photographer shall only be liable for loss or damage that is typical of the agreement and foreseeable.

In such cases, liability shall be limited to the amount of the agreed total fee.

The limitations of liability shall not apply to damage resulting from injury to life, body or health.

7.2 Exclusion of Liability for Third-Party Services

Where the Photographer, on the basis of corresponding authorisation, enters into an agreement with a third party in the name and for the account of the Client, the Photographer shall not be liable for the services or work results of the persons or companies engaged.

7.3 Exclusion of Liability for Use of the Recordings

The Photographer shall assume no liability for the manner in which the Recordings are used.

In particular, the Photographer shall not be liable for whether such use is permissible under competition law or trade mark law.

7.4 Limitation Period

Claims by the Client arising from a breach of duty by the Photographer or the Photographer’s agents or assistants shall become time-barred one year after the commencement of the statutory limitation period.

This shall not apply to claims for damages based on an intentional or grossly negligent breach of duty by the Photographer or the Photographer’s agents or assistants, or to claims for damages arising from injury to life, body or health, including where such claims are based on a slightly negligent breach of duty by the Photographer or the Photographer’s agents or assistants.

The statutory limitation periods shall apply to these claims for damages.
 

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8 Contractual Penalty and Damages

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8.1 Contractual Penalty for Breach of Obligations

Where the Client culpably breaches the rights of use granted to the Client, the Photographer shall be entitled to demand a contractual penalty in accordance with the following provisions.

8.2 Breaches Subject to a Contractual Penalty

A breach shall be deemed to have occurred in particular where a Recording:

1. is used outside the contractually granted scope of use, particularly with regard to the purpose of use, medium, duration or geographical territory, such use requiring the Photographer’s prior consent;

2. is edited, modified or passed on to third parties without the Photographer’s prior consent;

3. is published without crediting the Photographer as the author in accordance with Clause 5.5;

4. has authorship information or EXIF, IPTC or XMP metadata removed contrary to Clause 6.4; or

5. has existing opt-out notices removed or modified contrary to Clause 5.6 or Clause 6.4, or is used for AI training or text and data mining in conscious disregard of such notices.

8.3 Amount of the Contractual Penalty

In the event of a breach under Clause 8.2(c), the contractual penalty shall amount to one times the licence fee.

In the event of a breach under Clauses 8.2(a), (b), (d) or (e), the contractual penalty shall amount to two times the licence fee.

Where no separate licence fee has been agreed, the licence fee shall be deemed to be:

1. the portion of the agreed total remuneration attributable to the granting of the rights of use; or

2. where no such portion has been determined, the customary remuneration based on standard industry remuneration recommendations, for example the MFM list.

8.4 Determination of a Breach

A contractual penalty shall be incurred only once per Recording and per single, coherent act of use, even where several of the circumstances referred to in Clause 8.2 are fulfilled simultaneously.

8.5 Maximum Amount

The total amount of all contractual penalties arising from the same assignment shall be limited to three times the agreed total remuneration.

8.6 Credit and Additional Loss

The right to claim compensation for additional loss or damage shall remain unaffected.

Any contractual penalty paid shall be credited against any claim for damages.
 

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9 Value Added Tax and Artists’ Social Security Levy

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Value added tax and any artists’ social security levy, Künstlersozialabgabe, that may be incurred by the Photographer in respect of third-party services shall be added to the fees, charges and costs payable by the Client at the respective statutory rate.
 

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10 Applicable Law and Place of Jurisdiction

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The law of the Federal Republic of Germany shall apply.

Where the Client has no general place of jurisdiction within the Federal Republic of Germany, or relocates the Client’s registered office or habitual residence abroad after conclusion of the agreement, the Photographer’s place of residence shall be agreed as the place of jurisdiction.
 

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11 Severability Clause

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Should any provision of these General Terms and Conditions be or become wholly or partially invalid, the validity of the remaining provisions shall remain unaffected.