Use of an illustration without consent of the copyright holder

Now almost any information is accompanied by an illustration. Reception of visualization is associated primarily with the peculiarity of human perception: we receive 80% of information through vision. However, you cannot simply take any picture you like and use it in your material - you can violate the rights of another person and, as a result, incur liability.

In accordance with subparagraph 1 of paragraph 1 of Article 1225 of the Civil Code of the Russian Federation (hereinafter referred to as the “CC RF”), works of science, literature and art are the results of intellectual activity, which are granted legal protection. On the basis of paragraph six of clause 1 of article 1259 of the Civil Code of the Russian Federation, works of science, literature and art are objects of copyright, regardless of the merits and purpose of the work, as well as the way it is expressed. To recognize the result of intellectual activity as an object of copyright, it is necessary that it meet two main criteria for eligibility: the creative nature of the work and expression in an objective form.

The illustration itself is a work of fine art that explains any text. Thus, the creative embodiment of such an image creates an object of copyright.

By virtue of paragraph 1 of Article 1257 of the Civil Code of the Russian Federation, the citizen whose creative work it was created is recognized as the author of a work. From the moment the illustration is created, the author has exclusive rights, personal non-property and other rights. Personal non-property rights are inalienable and non-transferable, the waiver of such rights is null and void. With exclusive rights, the situation is different.

The author of the work or other copyright holder has the exclusive right to use the work in accordance with Article 1229 of the Civil Code of the Russian Federation in any form and in any way that does not contradict the law. The right holder may dispose of the exclusive right to the work.

In paragraph 89 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated April 23, 2019 No. 10 “On the Application of Part Four of the Civil Code of the Russian Federation” (hereinafter referred to as “Resolution No. 10”), it is explained that the use of a work of science, literature and art by any means, regardless of whether whether the relevant actions are performed for the purpose of making a profit or without such a purpose, is allowed only with the consent of the author or other right holder, except for cases when the Civil Code of the Russian Federation allows free use of the work. The illegal use of a work by each of the methods mentioned in paragraph 2 of Article 1270 of the Civil Code of the Russian Federation constitutes an independent violation of the exclusive right. Thus, in accordance with the above article, the use of a work will be, for example, the distribution of the work by selling it, the processing of the work or bringing the work to the public. In para. 2 clause 97 of Decree No. 10 states that a violation of the exclusive right to a work is the production of one copy of the work or more, carried out from a counterfeit copy or with unlawful communication to the public (including in case of illegal placement on the Internet).

At the same time, the use of the result of intellectual activity (including its use in the ways provided for by the Civil Code of the Russian Federation), if such use is carried out without the consent of the copyright holder, is illegal and entails liability established by the Civil Code of the Russian Federation, other laws, except for cases when the use of the result of intellectual activity by persons other than the right holder, without his consent is allowed by the Civil Code of the Russian Federation.

Based on the above rules of law, it follows that other persons cannot use the corresponding result of intellectual activity without the consent of the copyright holder, except as provided for by the Civil Code of the Russian Federation. For example, the use of your illustration on a website on the Internet will be bringing the illustration to the public and without your consent is also a violation.

According to Russian legislation, the illegal use of intellectual property objects entails, among other things, civil, administrative and criminal liability.

Subparagraph 3 of paragraph 1 of Article 1252 of the Civil Code of the Russian Federation provides that the protection of exclusive rights to the results of intellectual activity and to means of individualization is carried out, in particular, by presenting, in the manner prescribed by the Civil Code of the Russian Federation, a claim for damages - to a person who illegally used the result of intellectual activity or a means of individualization without concluding an agreement with the right holder (non-contractual use) or otherwise violating his exclusive right and causing damage to him.

In accordance with paragraph 3 of Article 1252 of the Civil Code of the Russian Federation, in the cases provided for by the Civil Code of the Russian Federation for certain types of results of intellectual activity or means of individualization, in case of violation of an exclusive right, the right holder has the right, instead of compensation for losses, to demand compensation from the violator for violation of this right. Compensation is subject to recovery when the fact of the offense is proven. At the same time, the right holder who applied for the protection of the right is exempted from proving the amount of losses caused to him. The lack of guilt of the infringer does not relieve him of the obligation to stop the violation of intellectual property rights, and also does not exclude the application of measures against the infringer aimed at protecting such rights.

According to Art. 1301 of the Civil Code of the Russian Federation in cases of violation of the exclusive right to a work, the author or other copyright holder, along with the use of other applicable methods of protection and liability measures established by Articles 1250, 1252 and 1253 of the Civil Code of the Russian Federation, has the right in accordance with paragraph 3 of Art. 1252 of the Civil Code of the Russian Federation to demand, at his choice, from the violator, instead of compensation for losses, payment of compensation in the amount of ten thousand rubles to five million rubles, determined at the discretion of the court; at twice the cost of counterfeit copies of the work, or at twice the cost of the right to use the work, determined on the basis of the price that, under comparable circumstances, is usually charged for the lawful use of the work in the way that the infringer used.

It should also be noted that before going to court, there is a special requirement to file a claim if the right holder and the infringer of the exclusive right are legal entities and (or) individual entrepreneurs and the dispute is subject to arbitration (clause 5.1 of Art. 1252 of the Civil Code of the Russian Federation).

At the same time, if the infringer uses a recycled illustration, that is, an illustration created on the basis of an illustration of the copyright holder without his permission, this action in itself constitutes a violation of the exclusive right to the work, regardless of whether the person using the reworked work is the person who carried out the processing (paragraph 2 point 91 of Decree No. 10).

According to paragraph 95 of Decree No. 10, when considering cases of violation of the exclusive right to a work by using its processing (subparagraph 9 of paragraph 2 of Article 1270 of the Civil Code of the Russian Federation), in order to satisfy the stated requirements, it must be established that one work was created on the basis of another. To establish whether the created work is a reworking of a previously created work or the result of the author's independent creative work, an expert examination may be appointed.

Thus, before using an illustration, it is necessary to check the copyright for such a work. Without the permission of the author, images can be used in several cases (Article 1274 of the Civil Code of the Russian Federation):

- for private purposes;

- when creating caricatures and parodies, that is, the processing of a work for humorous purposes.

- for citation for scientific, polemical, critical, informational, educational purposes.

Perhaps already at the stage of pre-trial settlement of the dispute, the copyright holder will be able to resolve the problem with the violator through negotiations: the violator can remove the illegally used illustration or offer the copyright holder to use the illustration, for example, under a license agreement for a certain fee. If the claims are not eliminated, the copyright holder may apply for the protection of his rights in court.

Thus, as part of the ongoing monitoring to identify violations of the copyright holder's rights to intellectual property objects, it became known that on sites on the Internet, without the permission of the copyright holder, illustrations are used, the exclusive rights to which belong to the Zuykov and Partners. These illustrations are used by the company to accompany the texts of informational articles and other information on its own website.

Having fixed these violations, Zuykov and Partners sent letters of complaint to the violators with demands to remove the illustration, otherwise the copyright holder would have turned to judicial remedies.

According to the results of the ongoing monitoring, the company Zuykov and Partners found more than fifty violations, which were eliminated by the violators voluntarily in the complaint procedure.