The IP Court clarified that the presence of an identical photograph does not disprove the authorship of the controversial one

According to paragraph 1 of Art. 1259 of the Civil Code of the Russian Federation [1], the objects of copyright are works of science, literature and art, regardless of the merits and purpose of the work, as well as the method of its expression. The list of objects of copyright includes, among other things, photographic works and works obtained by methods similar to photography.

The main feature that the law establishes as a criterion for recognizing the result of intellectual activity as an object of copyright is its creation by creative work (Articles 1228, 1257 of the Civil Code of the Russian Federation). As the Supreme Court of the Russian Federation explained [2], the creative nature of an object of intellectual activity is presumed - this means that it is considered created by creative work until proven otherwise. At the same time, the absence of such features as novelty, uniqueness and (or) originality of the result does not in itself mean that it is not creative.

Unlike some other objects of intellectual property, the rights to which arise from the moment of their registration in the appropriate register, copyright in a work arises by virtue of the very fact of its creation. This does not require registration or compliance with any other formalities. Authorship is presumed to belong to the person who is indicated as the author on the original or copy of the work or otherwise in accordance with paragraph 1 of Art. 1300 of the Civil Code of the Russian Federation (Article 1257, paragraph 4 of Article 1259 of the Civil Code of the Russian Federation). This state of affairs applies until proven otherwise, i.e. the presumption of authorship has not been rebutted. In this case, the burden of proof rests with the person challenging the authorship.

In this regard, case No. A40-31387/2023 on the recovery of compensation for violation of exclusive rights to a photograph, which was considered by the IP Court in November 2023, is interesting [3].

According to the plot of the case, the plaintiff discovered that a photograph was posted on the Internet on the defendant’s website, the rights to which belonged to the plaintiff on the basis of an exclusive rights trust agreement. The plaintiff presented evidence that the disputed photograph was first published by its author on his personal blog on the Internet, indicating the date of publication and copyright information that identifies the author.

However, the defendant disputed the authorship of the photograph, citing the fact that an identical photograph was posted on the Internet, the file properties of which contained information about the authorship of another person, which was confirmed by a screenshot of the site pages. On this basis, the defendant asked to refuse the plaintiff, citing the lack of a right to sue.

However, the IP Court rejected the defendant’s argument, noting that a screenshot of an identical photo does not mean that the latter is the photo in defense of which the lawsuit was filed, because these may be similar objects that were created in parallel, or one work may be the result of processing another.

In addition, the court noted that in this case, doubts about authorship presuppose a dispute about the authorship of the disputed photograph directly between the authors. At the same time, the defendant did not prove that the author of an identical photograph claims to be the author of the disputed one, and also granted the defendant the right to use the photograph.

Sources:

1. “Civil Code of the Russian Federation (Part Four)” dated December 18, 2006 N 230-FZ (as amended on June 13, 2023, as amended on December 14, 2023)
2. Clause 3 of part I of the Review of judicial practice in cases related to the resolution of disputes on the protection of intellectual rights, approved. By the Presidium of the Supreme Court of the Russian Federation on September 23, 2015, paragraph 80 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated April 23, 2019 N 10 “On the application of part four of the Civil Code of the Russian Federation”
3. Resolution of the IP of November 3, 2023 N C01-1740/2023 in case N A40-31387/2023