Borrowing photos from the Internet: how to avoid common misconceptions

According to paragraph 1 of Art. 1259 of the Civil Code of the Russian Federation [1], photographic works and works obtained by methods similar to photographs are subject to copyright, and as a general rule, third parties cannot use them without the consent of the copyright holder.

The law establishes several exceptions to this rule, allowing free use of copyrighted objects without the consent of the author and payment of remuneration to him. One of these exceptions, which leads to misconceptions and legal disputes related to the use of photographs, is the rule specified in Art. 1276 of the Civil Code.

According to this article, free use of a work of fine art or a photographic work that is permanently located in a place open to the public is permitted, except in cases where the image of the work is the main object of use or the image of the work is used for profit.

Is the Internet a place open to the public?

Despite the ease of access to the Internet, judicial practice [2] in applying Art. 1276 of the Civil Code proceeds from the fact that the Internet and other information and telecommunication networks do not belong to places open to the public. Thus, with regard to photographs posted on the Internet, the general rule applies that they cannot be used without the consent of the author and payment of remuneration to him.

Is it possible to borrow a photo if it is not protected from copying (downloading)

One of the misconceptions is the conclusion that a photograph can be borrowed if the author (copyright holder) posted it on the Internet without providing protection against borrowing. However, as judicial practice shows [3], the lack of technical protection does not mean that a photograph can be used, even if it is posted on various information portals on the Internet and technically it can be freely copied or downloaded.

Is it possible to borrow a photograph if information about the prohibition of its use is not indicated and there is no copyright sign (latin letter “C” in a circle)

Another typical misconception is the conclusion that any information posted on the Internet, for which there is no information about restricting access to it, is by default publicly available. This argument is often cited by defendants in cases of violation of exclusive rights to a photograph posted on the Internet [4].

However, according to the rule that follows from Art. 1229, the absence of a prohibition of use is not considered consent (permission). As for the security sign, by virtue of Art. 1271 of the Civil Code, its placement is a right and not an obligation of the copyright holder.

Thus, the absence of an indication prohibiting the use of a photograph and/or a copyright mark on it does not give the right to borrow the photograph.

Is it possible to borrow a photograph if its author or other copyright holder is not indicated?

The law does not make the possibility of free use of a work, including a photograph, dependent on whether its author (copyright holder) can be identified or not. This rule also applies to cases of free use of photographs for informational, scientific, educational or cultural purposes (Article 1247 of the Civil Code), in which one of the conditions of use is the mandatory indication of the author of the work [5].

Thus, the fact that a photograph is posted on the Internet without indicating its author (copyright holder) does not in itself mean that it can be freely borrowed.

Sources:

1. “Civil Code of the Russian Federation (Part Four)” dated December 18, 2006 N 230-FZ (as amended on December 5, 2022) // SPS “ConsultantPlus”
2. Clause 100 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” // SPS “ConsultantPlus”
3. Resolution of the SIP dated December 8, 2023 N C01-2277/2023 in case N A40-91224/2023 // SPS “ConsultantPlus”
4. Resolution of the SIP dated June 15, 2022 N C01-758/2022 in case N A66-13254/2020 // SPS “ConsultantPlus”
5. Resolution of the Fourteenth Arbitration Court of Appeal dated September 14, 2022 No. 14AP-6542/2022 in case No. A66-5178/2021 // ATP “ConsultantPlus”