In addition to personal blogs hosted on their own websites, influencers can also promote products simply by presenting images (so-called “posts”), short videos (“stories”), as well as newer formats like “reels” or “live videos” on social media. They may use “tags” or “tap tags,” as well as explicit links that, when clicked, lead directly to the advertised products.

Whether influencer marketing constitutes a violation of competition law under Section 5a (4) of the German Unfair Competition Act (UWG) depends on the specific case. Because case law regarding labeling obligations in influencer marketing has varied widely, the legislator has attempted to provide clarity with the revised Section 5a (4) sentences 2 and 3 UWG.

When assessing whether an action benefits a third-party company, it is now crucial that the influencer has received payment or a similar benefit, with the burden of proof resting on the influencer. Section 5a (4) sentence 2 UWG does not apply to actions benefiting one’s own company. This is because self-promotion is also generally subject to a labeling obligation if it is not otherwise recognizable. For unpaid recommendations by influencers, as per the addition in Section 2 (1) No. 2 UWG, it must be considered whether there is a direct connection to the sale of products or services. Influencers in this area are to be regarded similarly to media companies, as they regularly finance themselves through advertising revenue and are particularly attractive to clients when they have a large reach.

Furthermore, for actions benefiting one’s own company, there must be no doubt among the relevant target audience that a commercial purpose is present. The requirement to label only lapses if the advertising nature is immediately and unmistakably apparent. A commercial purpose is not absent just because a profile is labeled “private” and not a “business account,” as long as it is publicly accessible. For “business accounts” on Instagram, which are marked with a blue checkmark, case law correctly assumes that the relevant audience is aware these are operated mainly for monetary reasons and thus pursue commercial purposes. The same applies to accounts with millions of followers and posts of high quality with more than 50,000 likes. The situation may be different if the advertising effect only becomes apparent after a detailed analysis of the post, for example, if decisive company tags for the commercial purpose only become visible when hovering over the posted image.

The requirements for labeling (the “how”) depend on the circumstances of each case, especially the communication medium used. Key factors include the placement of the label within the post, the design and visual emphasis, as well as the specific wording. The use of hashtags like “#ad” or “#sponsored by” is not sufficient if they are placed at the end of a post. In all cases, the freedom of expression and media freedom under Article 11 of the Charter of Fundamental Rights of the European Union must be considered.

Influencer marketing can also be relevant under media law. If influencers, through specific presentations, draw attention to products or services, this may constitute advertising if the presentation of goods or services is prominent; it may be considered sponsorship if, for example, a video is fully or partially financed by a company, and product placement if brands or products are specifically shown or mentioned.

It is also important to consider No. 11 of the Annex to Section 3 (3) UWG. The key question here is whether the influencer’s posts can be classified as “editorial content.” For blog posts, this can generally be affirmed, though it depends on the individual case. For Instagram posts or similar media, this is more critically assessed.

Additionally, claims may arise under Section 3a UWG in conjunction with Section 10 LPG, Section 3a UWG in conjunction with Section 22 MStV, and Section 3a UWG in conjunction with Section 6 (1) No. 1 TMG if the influencer receives financial compensation. In such cases, these provisions are considered special regulations and take precedence when actions benefit a third-party company.

For impermissible advertising in editorial form, the distributor can initially be held liable for injunction and removal under Section 8 (1) UWG. In print media, the publisher and responsible editor or editor-in-chief, as well as the printer, are liable and cannot invoke the press privilege recognized in competition law for publishing advertisements. The independent advertising agent, who forwards a pre-prepared contribution from the advertiser, can also be held liable, but only for their involvement in editorial advertising, not for its publication. In broadcasting, not only the broadcaster is liable as an interferer; the production company, if separable from the broadcaster, is also liable. Additionally, all other independently involved parties in the program or film, such as the director, moderator, or main actor, can be held liable. In influencer marketing, liability may extend not only to the influencer but also to other involved parties or companies, such as consumer goods manufacturers, retailers, or agencies increasingly used by influencers.

Practical Tip:
To avoid liability in influencer marketing, it is advisable to agree on indemnification clauses internally.

The traditional liability rules apply to the distributor without restriction. To avoid unlimited liability for those not directly acting, case law has restricted the concept of “interferer liability” and requires a breach of a duty to review. In competition law, “interferer liability” has now been abandoned, and direct liability is now linked to the breach of duties of care or review. Liability for adopting third-party content arises from general rules but can be problematic with new technical possibilities like hyperlinks and framing.

For the relatively rare claims for damages and preparatory information, the press privilege under Section 9 sentence 2 UWG must be observed, which stipulates that a claim for damages against those responsible for periodical print media can only be asserted in cases of intentional violation. Section 10 UWG also regulates a claim for disgorgement of profits for associations under certain conditions.

b) Beneficiary

The liability of the beneficiary of impermissible disguised advertising is somewhat more nuanced. The beneficiary is fully liable under general principles if they have deliberately caused the disguised editorial advertising, especially through agreements with the distributor. However, this can often be difficult to prove. In such cases, the beneficiary is only liable if, based on life experience, it is clear that the beneficiary submitted their advertising material in such a way that they deliberately speculated on disguised editorial advertising. This is the case, for example, if the beneficiary submits advertisements in editorial form; they cannot later claim ignorance of insufficient labeling. The same applies if a beneficiary sends ready-to-print articles with disguised advertising to newspapers to which they have also placed insertion orders, as this may compromise editorial independence.

The beneficiary’s responsibility may also arise if they provide building blocks for the editorial text that, upon reasonable assessment, can only be incorporated into editorial advertising (sometimes even the provision of product images suffices), and they may need to reserve the right to review the final article. Disguised advertising can appear not only in editorial press reports but also in statements by seemingly neutral third parties that are, in fact, paid advertisements and are thus objectionable under competition law.

In recent years, influencer marketing has emerged as a successful business model alongside traditional marketing methods. Its peculiarity lies in the fact that, rather than traditional sales intermediaries, influencers—often female personalities (“role models”)—operate accounts on social media platforms, mainly Instagram but also YouTube, Facebook, and Snapchat, for self-presentation and have gathered a large number of followers. They use their popularity to present certain products or companies (such as clothing, handbags, cosmetics, food, hotels) to their followers in a seemingly private and casual manner through posts, tagging, and linking, thereby encouraging purchases. When products are clicked in image posts (“tap tags”), the company’s identifiers (electronic tags) appear. Clicking these “tap tags” leads via links to the companies’ accounts, which directly or indirectly enable the purchase of the displayed goods or services. Influencers typically receive, demand, or expect payment or other material benefits for these activities.

The numerous legal questions regarding the permissibility of influencer marketing have led not only to extensive academic discussion but also to various court decisions. These issues have largely been clarified by three leading decisions and two further decisions of the Federal Court of Justice (BGH). However, the BGH could no longer take into account the new regulations in Section 2 (1) No. 2 (insertion of the word “directly”) and in Section 5a (4) sentences 2 and 3, introduced by the Act to Strengthen Consumer Protection in Competition and Trade Law as of May 28, 2022. These new regulations were intended to provide a secure legal framework for influencer actions. Legal consulting practice has adjusted to the largely clarified legal situation. The relationships between advertising companies and influencers are increasingly governed by detailed contracts, which also stipulate the influencer’s obligation to appropriately label the commercial purpose of their posts. As a result, it is expected that there will be hardly any major legal disputes over influencer marketing in the future.

For the legal assessment of influencer activities, it is important to distinguish between actions for one’s own company and those for a third-party (advertising) company, as different requirements apply. The same action by an influencer must therefore usually be examined from both perspectives. It should be noted, however, that under Section 5a (4) sentence 2, in the case of actions for a third-party company, a commercial purpose does not exist if the actor does not receive or is not promised any payment or similar benefit from the third-party company.

If you need a more concise summary or a reformulation for a specific purpose (e.g., academic, business), please let me know!

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1. Introduction: The Legal Grey Area of Reaction Videos

Reaction videos have become a staple of digital media culture. They shape public opinion, provide entertainment, and enable interactive engagement with content. From humorous commentary to in-depth analysis or political statements, the spectrum is vast. However, the apparent ease with which third-party content is integrated into these videos belies a complex legal landscape—especially concerning copyright and trademark law.

The judgment of August 29, 2024, is a landmark decision that clarifies and tightens the requirements for creators of reaction videos, particularly regarding the obligation to credit authors and the application of copyright exceptions. It demonstrates that the assumption that reaction videos automatically fall under a copyright exception is often a misconception. This article explores the core aspects of the judgment, expands on trademark implications, and outlines the comprehensive consequences creators may face if they fail to comply with legal requirements.

1. The Judgment of August 29, 2024: Detailed Copyright Analysis

The court’s order of August 29, 2024, concerning a preliminary injunction, provides valuable insights into current case law on reaction videos. The applicant, seeking to prevent the removal of three specific videos from the platform “E.” and to avoid copyright warnings, was denied relief. The court’s reasoning is crucial.

The court found that the applicant’s public accessibility of “third-party moving images” constituted a copyright infringement. These moving images are protected at least under § 95 of the German Copyright Act (UrhG) (protection of moving images as photographic works or similar representations) or as film works (§ 2(1)(6) UrhG). The use occurred without the rights holder’s consent. The applicant could not successfully invoke any statutory copyright exceptions.

1. The Decisive Role of Author Attribution (§ 63(2) UrhG) in the Context of the Quotation Right (§ 51 UrhG)

The core of the court’s reasoning is the denial of the quotation right under § 51 UrhG, the most important exception for using third-party works in reaction videos.

1. a) The General Rule of Complete Author Attribution
   51 UrhG allows the reproduction, distribution, and public communication of a published work for the purpose of quotation, provided the use is justified by the specific purpose. The court acknowledged that the requirements of this provision could, in principle, be met, as the applicant engaged with the content of the moving image excerpts and commented on them as part of their own expression of opinion. However, the decisive hurdle was the failure to comply with the “formal requirements” of § 63(2) UrhG. According to this provision, in cases of public communication, the source—including the author’s name—must always be indicated unless this is impossible.

The applicant had indicated the source of the used videos but did not name the author, which was necessary. The absence of author attribution was not justified. The entire quotation was thus unlawful.

1. b) Narrow Interpretation of “Impossibility” of Author Attribution
   The court emphasized that author attribution is the rule and its omission the exception. Such an exception only applies if attribution is “impossible,” and the burden of proof lies with the user. The user must specifically demonstrate what efforts were made to identify the author.
2. c) Extensive Duty to Research
   The court stressed the duty to actively research the author. It is insufficient that the author was not listed on the platform. The applicant should have, for example, contacted the channel operator via the provided email address to inquire about authorship. The applicant’s fear of political backlash was deemed understandable but not sufficient to render attribution impossible.
3. d) The Painer/Standard Exception
   The court distinguished this case from the ECJ’s “Painer/Standard” decision, where omission of author attribution was allowed because the secondary source was not permitted to name the author. Here, the applicant used the original source, so research was feasible.
4. e) Consequence
   Violation of the attribution requirement renders the use of the work entirely unlawful.
5. Pastiche (§ 51a UrhG): Between Legislative Intent and Restrictive Case Law

Another central point is the rejection of the pastiche exception (§ 51a UrhG), introduced with the implementation of the DSM Directive.

1. a) Broad Legislative Intent vs. Judicial Interpretation
   The German legislator intended a broad concept of pastiche to cover practices like remix, meme, GIF, mash-up, fan art, fan fiction, or sampling as key elements of contemporary digital culture. The court, however, followed the restrictive approach of the German Federal Court of Justice (BGH), which sees pastiche as at least a catch-all for artistic engagement with a pre-existing work, possibly requiring humor, stylistic imitation, or homage.
2. b) Application to Reaction Videos
   The court found no artistic engagement in the applicant’s videos, only political commentary. Even if some humor was present, it was merely a stylistic device for commentary, not a protected artistic contribution.
3. c) Avoiding Redundancy with the Quotation Right
   The court argued that accepting pastiche in such cases would render the quotation right and its limitations obsolete, which was not the intent of the EU legislator.
4. Other Exceptions: Inapplicability to Pure Commentary

The court also considered other exceptions, such as reporting on current events (§ 50 UrhG) or caricature and parody (§ 51a UrhG), and found them inapplicable. The applicant did not caricature or parody the content but merely commented on it.

Key Takeaway:
Pure commentary or political engagement with third-party video material without full author attribution is unlawful and does not fall under broad copyright exceptions, especially not pastiche.

III. Trademark Law Challenges for Reaction Videos: A Deeper Look

In addition to copyright, reaction videos also pose significant trademark risks. Often, the content being reacted to features trademarks, logos, slogans, or even product placements.

1. Trademark Law Functionality and the Risk of Confusion

Trademarks serve to distinguish the goods or services of one company from another (§ 3 German Trademark Act, MarkenG). Trademark infringement occurs if a protected sign is used “in the course of trade” without the owner’s consent (§ 14(2) MarkenG). For professional creators earning revenue, this is typically the case.

Risks include:

• Identical or Similar Use for Similar Goods/Services: If viewers might believe the creator is affiliated with the trademark owner.
• Risk of Confusion: If the impression arises that the reaction video is from or authorized by the trademark owner.
• Exploitation or Detriment to Distinctiveness or Reputation: Especially relevant for well-known marks (§ 14(2)(3) MarkenG).

2. Limits of “Nominative Use” and Critical Reporting

Generally, the mere mention or depiction of a trademark for descriptive or critical purposes is permissible, provided it does not imply a business relationship with the trademark owner. However, the boundaries are fluid:

• Advertising Impression: Using a trademark in a way that objectively appears as advertising for the creator’s or third-party products crosses the line.
• Avoiding Defamation or Denigration: Criticism is allowed, but not unfounded negative statements that could constitute actionable disparagement.
• Risk of Confusion or Unfair Exploitation: If the use creates the impression of partnership or unfairly leverages the brand’s reputation, infringement may occur.

3. Practical Examples

• Prominent Product Placement: Reacting to an ad and repeatedly showing a product without critical engagement may be impermissible, especially if the creator also advertises products.
• Uncommented Logo Displays: Inserting logos as background or overlays without direct commentary may suggest exploitation of the brand’s reputation.
• Use of Slogans in Titles/Descriptions: Employing well-known slogans without direct critique may constitute unfair exploitation.

Trademark law assessments are highly fact-specific and require careful balancing of freedom of expression and trademark protection.

1. Comprehensive Consequences for Creators and Preventive Strategies

Non-compliance with copyright and trademark law can have far-reaching, even existential, consequences for creators, extending well beyond mere video deletion.

1. Civil Sanctions: Cost Risks and Damages

The most common first step by rights holders is a cease-and-desist letter. The creator is required to remove the content, sign a cease-and-desist declaration (often with a penalty clause), and pay the rights holder’s legal fees.

If the creator refuses:

• Preliminary Injunctions: As in this case, rights holders can obtain a quick court order.
• Main Proceedings: If necessary, a full trial may follow.

Damages:
Rights holders can claim damages, calculated by:

• License analogy: What a reasonable licensee would have paid.
• Actual damages: If provable.
• Surrender of profits: The creator must disclose and surrender profits from the infringement.

All legal costs can quickly escalate, especially with high-reach videos.

2. Criminal Implications

Copyright (§ 106 UrhG) and trademark (§ 143 MarkenG) infringements can also be criminal offenses, especially if intentional and commercial. Fines and even imprisonment are possible, though rare.

3. Platform Enforcement: Content ID and Strikes

Platforms like YouTube, Twitch, and TikTok use automated systems (e.g., Content ID) to detect infringements. Rights holders can block, monetize, or issue strikes. Three strikes within a set period (e.g., 90 days on YouTube) can lead to permanent channel deletion.

4. Reputational and Sponsorship Risks

Legal disputes or public cease-and-desist letters can severely damage a creator’s reputation, affecting both audience and potential sponsors.

5. Recommendations for Creators

• Strictly comply with attribution requirements: Always name the author and source; actively research if not immediately apparent.
• Assess the purpose of trademark use: Only use brands in a descriptive or critical context, not for advertising or reputation exploitation.
• Focus on original creativity and transformation: The more original input, the more likely an exception may apply.
• Use licensed or license-free material: Prefer Creative Commons or explicitly licensed content.
• Seek legal advice when in doubt: Especially for high-value or controversial content.
• Be cautious with political commentary: Pure political commentary on third-party content without artistic engagement is not protected by copyright exceptions.

1. Conclusion: The Evolution from “Digital Wild West” to a Regulated Space

The August 29, 2024, judgment sends a clear message to the creator community: The era of lax copyright practices online is ending. Reaction videos remain a vital format, but their creation now requires legal diligence and responsibility.

Active research, strict attribution, and a clear understanding of the limits of copyright and trademark exceptions are essential. Creators who embrace these challenges and take preventive measures can continue to thrive. Those who ignore the risks face severe civil, criminal, and platform-related consequences that could jeopardize their entire online presence.

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