Warning letter CHROMORANGE | PHOTOSTOCK by attorney Wildmoser on behalf of Reinhold Tscherwitschke

Businesses, associations, and private individuals are increasingly facing cease-and-desist letters from the photo agency Chromorange (owner Reinhold Tscherwitschke). Those receiving the letters are accused of publishing images by Michael Bihlmayer without a license on social media platforms or company websites. 

The scenario: „Public Domain“ vs. Copyright

A common misconception is that images freely searchable via search engines can also be used freely. Legally, however, simply uploading a file to the servers of Facebook or Instagram constitutes making it publicly available under Section 19a of the German Copyright Act (UrhG).

Even the "share" feature of the platforms does not necessarily release the user from liability if the image material was originally uploaded illegally or if the platform's terms and conditions do not provide sufficient licensing for the specific commercial use.

The demands of attorney Klaus Wildmoser in detail

The cease-and-desist letters for Reinhold Tscherwitschke (Chromorange) regularly assert four core claims:

• Injunction and removal (§ 97 para. 1 Copyright Act): The recipient of the cease-and-desist letter is required to submit a legally binding declaration to refrain from such conduct. Danger: The pre-formulated designs are often too broad.
• Damages by way of license analogy (§ 97 para. 2 Copyright Act): The fictitious license fee that would have been incurred in a lawful acquisition is demanded. Chromorange often sets the... MFM fee recommendations underlying.
• Surcharge for missing author attribution: Citing case law, a surcharge of 100 % is often demanded if the photographer's name (Michael Bihlmayer) is not directly mentioned on the image.
• Reimbursement of legal fees (§ 97a para. 3 Copyright Act): These fees are calculated based on the value of the subject matter. In cases of commercial use, the value in dispute is often set at a minimum of €6,000.

Strategic defense approaches

A lump-sum payment is rarely advisable, as the amount of the claim is often contestable.

If you have received a cease and desist letter from attorney Wildmoser:

1. Note the deadlines: The deadlines for issuing a cease and desist declaration are often short (a few days).
2. No premature contact: Do not speak to the other side without knowing your legal position.
3. Deleting alone is not enough: Removing the image does not eliminate the risk of recurrence. An explanation is still necessary.

Check the provision of information: You are obliged to truthfully state the scope of use (duration, platform), but you should have this accompanied by a lawyer.