“Fee Agreement”

• 1. The submission of a fee offer upon request is a declaratory behavior to be understood, according to the objective understanding of an honest recipient of the declaration, as meaning a wish to conclude a fee agreement for the transfer of the rights of exploitation.

• 2. The offering party is thus entitled to assume that the recipient will consider the offer and, if need be, negotiate the conditions – i.e. the recipient has a “duty to speak”.

• 3. Consent can, however, be implied resulting from the recipient’s declaratory behavior (here: retrieval and usage of commissioned photos).

• 4. Implied consent can substitute the merely voluntary written form for such agreements.

• 5. In the interest of the security of legal transactions, the person who signs a document without reading it must, as a rule, accept its contents as representing his or her declaration. This applies particularly to an entrepreneur, who should be expected to read written communications. This principle also applies generally to a clearly implied declaration of intent by a contracting party which refers to an unread document of the other contracting party in unambiguous terms.

• 6. Claims for reasonable remuneration or double remuneration under intellectual property laws have a basis in unjust enrichment law. The amount of the remuneration is based on the reasonable remuneration for a licence to use a work from the perspective of honest parties (here: based on the value of the use of commissioned photographs).

• 7. The calculation basis for such is the gross income achieved through the actual use of commissioned photographs, of which the author is entitled to a reasonable percentage share, which can be assessed according to Sec. 273 of the Austrian Code of Civil Procedure. To this extent, an accounting claim is justified.