In our practice in the field of intellectual property and protection of copyright and related rights, we more and more often encounter various cases in which photographic works are used on the Internet by third parties other than the authors or the copyright holders. We witness how some users perceive someone else’s works available in the virtual space which are a subject to free use, and in such cases the consideration of certain specific features is omitted, which in general leads to copyright infringement.
With the current article we present you the main guidelines that you should follow when using photographic works on the Internet, so as not to infringe copyright.
In English, the general term “copyright” has been adopted, which contains the rights of the authors of various works of intellectual property much more comprehensively. Bulgarian law considers either the general concept of “copyright and related rights” or the different types of such rights.
What do you need to know about intellectual property rights to photographic works in the light of their use on the Internet?
The Bulgarian Act on Copyright and Related Rights (ACRR) considers several hypotheses regarding the use of photographic works, without, however, considering the specific hypothesis of their use on the Internet, which should be equated to a public display within the meaning of our law. According to the Act on Copyright and Related Rights, the right to publicly display photographs belongs to the author or to a person to whom the author has transferred this right. Therefore, as a rule, the free use of photographs (including on the Internet) without the consent of the author is prohibited. This rule applies even to portrait photographs, as the law allows the author and the person photographed to agree on the terms of the use of the photograph. It is important in these hypotheses to note that the photographer should in the first place obtain the consent of the person being photographed to photograph him.
An exception to the rule above according to the Act on Copyright and Related Rights is allowed when using works (including photographic ones) that are constantly exhibited on streets, squares and other public places, if this is done for information or other non-commercial purposes. Such use does not require the consent of the copyright holder and no remuneration is due.
The following exception under our law for the use of a photographic work without the consent of the author is permissible in the reproduction of the work, regardless of the medium, by an individual for its personal use, provided that it is not made for commercial purposes. In this case, however, a payment of fair compensation to the author is due.
Regardless of which of the hypotheses of use it falls under, however, the fundamental right of every author, including photographers, should not be forgotten, namely that their authorship should be indicated or the so-called “photo credit” should be given. ”. Even the general terms and conditions of websites that offer access to and use of completely “free” photographs contain texts according to which the reference to the author and/or the source of the photograph is always good, and in our opinion the best practice.
This recommendation is based not only on our experience in solving many similar cases when using photographs on the Internet, but also on the basis of our work with highly developed ways to monitor the use of photographs on the Internet. Advances in technology have made it possible to create automatic platforms that detect the use of photos on the Internet and notify photographers of any such use. The assessment of whether the use is lawful or not is usually made by the author himself or by the attorney engaged by him.
In addition, it should be kept in mind that referring only to the source from which the photograph is used may also not be sufficient. According to the Act on Copyright and Related Rights, without the consent of the copyright holder and without payment of remuneration, it is admissible to reproduce works related to a current event, so that these works are used by the media to a limited extent, justified by the purposes of the information indicating the name of the author, unless this is not possible. Make sure that it is really impossible to find the name of the author of the photograph, as these would usually be rare hypotheses. It is a common practice, especially for young photographers, to publish their works on the Internet and to provide the opportunity to use them without remuneration, but with obligatory reference to the author himself. This guarantees copyright when using the “free” photo. Omission of the author’s reference in the use of such works equates to copyright infringement with all the consequences of the law.
For such violations ACRR provides a property sanction in the amount of BGN 2,000 to BGN 30,000, and the possibility remains open for the author to claim compensation for property and non-property damages in court. Here we should also take into account the hypothesis that, if you have used photography by foreign authors, the Bulgarian law will not be applicable and possibly the court case for establishing copyright infringement is very likely to be subject to a foreign court, thus the defence possibilities would be further complicated, and in addition you might be charged with high court costs and attorney’s fees. In such cases, we usually advise our clients to use out-of-court means to reach an agreement with the other party. Negotiation and mediation are extremely appropriate and successful solutions in such cases.
To avoid such consequences and risks when using third parties’ photographic works on the Internet, we advise you to follow the recommendations in this article, as well as to consult with attorneys-at-law with vast experience in the field of intellectual property, just like us in “Murgova and partners” Attorneys at Law. If you have any questions or need advice, we will be happy to help you. Contact us through www.murgova.com
*Image by mohamed Hassan from Pixabay