The use of photographs in the Internet

The analysis of the judicial practice regarding the disputes related to the violation of the intellectual rights indicates an increase in the number of the cases, which subject of consideration is the rights to the copyright subject matters, in particular, the photographic works. It is noteworthy that, when considering this category of cases, in the majority of cases, the main counter argument of defendants is the argument that the disputed photographs are not the copyright subject matter, therefore the rights to the photographs can not be defended.

According to Article 1259 of the Civil Code of the Russian Federation, the copyright subject matters shall be recognized the works of science, literature and art, regardless of the purpose and merits of the work, as well as the way of its expression. Despite the fact that the list of the works recognized as the copyright subject matters is open, it is expressly stated in Paragraph 1 of Article 1259 of the Civil Code of the Russian Federation that the photographic works and the works obtained by the ways similar to the photograph also shall be referred to the copyright subject matters. Therefore, the photographs are being protected and defended on a par with other copyright subject matters. At the same time, it should be noted that in order to recognize a result of the intellectual activity as a copyright subject matter, two criteria should be present – a creative nature and an objective form of expression.

Paragraph 28 of the Resolution of Plenum of the Supreme Court of the Russian Federation No. 5 and Plenum of the Supreme Arbitration Court No. 29 of March 26, 2009 “On Some Issues Arising in Connection with the Entry into Force of Part Four of the Civil Code of the Russian Federation” establishes the presumption of a creative nature of the result of intellectual activity. Obtaining a photograph with the help of technical devices can not indicate the absence of the creative nature of such work, since there are no special conditions at the legislative level that must be observed to recognize the photographic work as a copyright subject matter (the Resolution of the Intellectual Property Court of December 3, 2014 in case No. A33-14443 2013).

Thus, the photographic works, like other works protected by the copyright, have a creative nature until otherwise is proved. In this case, the burden of proving will lie on the person, who has committed the violation of the intellectual rights.

The most common violation of the exclusive right to the photographic works is reproducing and bringing of the photographs in the Internet to the public without a permission of the right holder. In such cases, bringing to the public is carried out by providing access to the work posted in the Internet site to any person from any place and at any time.

In accordance with Article 1301 of the Civil Code of the Russian Federation, in the event of the violation of the exclusive right to the work, the author or other right holder shall be entitled to claim at his choice from the violator recovering compensation instead of the reimbursement of losses in the following amounts:

1) in the amount from ten thousand roubles to five million roubles determined at the discretion of the court on the basis of the nature of the violation;

2) in double the amount of the value of the counterfeit copies of the work;

3) in double the amount of the value of the right of the use determined on the basis of the price, which in comparable circumstances is usually charged for the lawful use of the work by the way used by the violator.

At the same time, the author or the right holder, along with the presentation of the material claim for recovering compensation, shall be entitled to use other ways of defence of the violated right stipulated by Articles 1250, 1252, 1253 of the Civil Code of the Russian Federation.

For example, one well known blogger has filed a statement of claim to the court seeking compensation in the amount of 1.2 million roubles for the unlawful use of 50 photographic works in the Internet site (Case No. A65-12234 / 2016). The violation of the exclusive rights was expressed in reproducing and bringing to the public of the photographs without a permission of the right holder and without paying him remuneration. Initially, the photographs had been published by the plaintiff in the plaintiff’s personal blog with the indication of his name and surname – the information that allowed identifying the fact that the photographs belonged to a particular person. The defendant removed that information from 7 photographs out of 50, as to the remaining photographs, the defendant indicated the information about the author.

The court of first appearance refused to satisfy the claim in full during the first round of the consideration of that case.  The appeal did not affect this decision, and the compensation in the amount of 580,000 thousand roubles was recovered from the defendant for the illegal reproduction and bringing to the public the photographic works, as well as the compensation in the amount of 70,000 roubles for removing the information about the author from 7 photographs. The Intellectual Property Court quashed this decision in the part of the recovery of compensation in the amount of 580,000 roubles and forwarded the case for a new consideration to the Court of Appeal.

During the second round, the Court of Appeal upheld the decision of the court of first instance in the part of the refusal to recover compensation in the amount of 580,000 roubles, giving as a reason that the defendant’s actions should have been qualified as citing the work and, as a result, such actions were lawful. When assessing the defendant’s actions, the court was guided by the fact that the initially controversial photographs had been posted in the plaintiff’s personal blog, which contained the publicly available and the socially significant information. In this case, all photographs had been brought to the public by the plaintiff personally. The defendant, being a registered media, had used the photographic works to include them in the informational material at the site, in connection with which, in the Court’s opinion, the scope of citing the works complied with the purpose of citing.

The Supreme Court of the Russian Federation, having considered the blogger’s complaint, pointed out that in resolving the dispute, the courts had proceeded from the provisions of Article 1274 the Civil Code of the Russian Federation, which established the cases of a free use of the work in the informational, scientific, educational or cultural purposes, without a consent of the author or the right holder and without the payment of remuneration.

However, for the purposes of the free use of the works, including the photographic works, four conditions must be observed: 1) the use of the work in the informational, scientific, educational or cultural purposes; 2) with the obligatory indication of the author, 3) of the source of borrowing and 4) in the scope justified by the purpose of citing.

At the same time, regarding the works, as it follows from Paragraph 2 of Article 1301 the Civil Code of the Russian Federation, the following shall not be allowed:

1) removing or changing the copyright information, without the permission of the author or other right holder;

2) reproducing, distributing, importing for the purposes of the distribution, the public performance, broadcasting or cablecasting, or bringing to the public of the works, with respect to which the copyright information has been removed or changed without the permission of the author or other rightholder.

Thus, considering that case, the courts has come to the opposite, mutually exclusive conclusions on the lawfulness of the use of the Plaintiff’s photographs.

In another case, regarding one blogger’s statement of claim for recovering compensation for the use by the television channel of the photographs posted in the plaintiff’s personal blog, the courts has concluded that the use of the photographs demonstrating social problems could be used without a consent of the author or the right holder for the purposes of discussing the problems with an audience. In this case, indicating only a link to the author’s site as a signature to the photographs was sufficient, since the name of the plaintiff’s site coincided with the name of the plaintiff, and, therefore the link served as a source of borrowing and it points to the author (Case No. A40-5830/2017).

As we see, despite the legislative regulation of the issues of the use of the copyright subject matters and the consolidation of a fairly wide range of the legal means for the defence of the rights, the issues of the use of the photographic works do not lose their relevance in the law enforcement practice.