Summoned for copyright infringement: pay or not?
From time to time, clients contact us because they have received a demand from a (mostly foreign) law firm for the alleged infringement of copyrights or other intellectual property rights. The demand letter states that the client is infringing the copyrights of the photographer by placing a photo or image on their website. Subsequently, the letter threatens with legal proceedings thereby including claiming high damages and lawyer’s fees. Then the letter concludes by stating that legal proceedings may be avoided by accepting the settlement proposal. This usually comes down to the payment of a few hundred – sometimes a few thousand – euros. You were not aware of any harm done; so what can you do? Accept the proposal and pay the amount for copyright infringement or not?
Images on the Internet protected by copyright?
You have just started a company and are trying to find a good-looking image of people having a meeting to make your new website appealing. Chances are you will type ‘meeting’ into Google and scroll the ‘images’ to find an appealing image. That’s easy, but not always allowed! Photos and images are usually copyright protected.
Copyright is the exclusive right of the creator – in this case the photographer – to publish and use his photo or image. A photo enjoys copyright protection if it it original and bears the so-called ‘personal stamp of the creator’ (i.e. the photographer). This basically means that the photo is an independent expression of the photographer’s creativity. This follows, for example, from the composition, lighting and colour scheme of the image and the camera settings used. In practice, copyright protection for images is quickly assumed. Only common or trivial elements do not qualify for copyright protection. This was for example the case with a true-to-life close-up display of a temperature gauge on the dashboard of a car (in Dutch).
Not every use constitutes copyright infringement!
Even if a photo is protected by copyright, this does not necessarily mean that there is also an infringement. A relevant factor is how the photo was used and where it originated from. You may have legitimately obtained the image through a stock site under a valid license. The license then determines what is and is not allowed for the use of the image. Under those terms you have the permission from the photographer to use the image. This means that with a valid license, the summons can be refuted.
Moreover, the use of copyrighted works may also be permitted without a licence. For example, if the photo has been used as a quote. In this respect it is required that the image is not solely used ‘for decoration’ purposes, but actually supports the corresponding text and complements the contents. Also, the name of the photographer must be mentioned when using an image as a quote.
Embedding can also provide a solution: how does that work?
In 2014, the European Court of Justice (ECJ) ruled that content (such as an image) that has been made public legally – i.e. by, or with the permission of, the creator – and is freely accessible, may be embedded. This may be done without the prior consent of the creator and without compensation (free of charge!). Possibly even without mentioning the creator’s name.
When embedding, you place an ’embedded’ link that shows the content or image from the original source on your website. The content or photo remains on the original source website and will not be downloaded or copied and uploaded again.
The ECJ ruled that this does not constitute a copyright infringement. The situation is different when the original source is not freely accessible, and the content, for example, is only intended for certain users, such as subscribers. The placement of an embedded link, which in fact circumvents that restrictive measure, will be considered a copyright infringement in that case. The same applies when the ’embedded’ link refers to freely accessible but illegal content.
How to proceed: pay the license fee and damages or not?
Let’s return to the case with the meeting image where invoking the quote exemption will not suffice. This effectively means that intellectual property rights have been infringed, unless the photo was ’embedded’ and the source was legal (as explained above). When infringement is assumed, the photographer is entitled to compensation, which usually comes down to compensation of the missed license fees.
This does not necessarily mean that there is no other option than payment of the claimed (license and/or compensation for damages). Demands are often wrongly sent, for example because the firm that sends the letter is not authorised to act on behalf of the photographer or rightful claimant. Companies such as LaPixa, Masterfile, Getty Images and Miller Rey Brighton are known (and notorious) for sending these types of demand letters.
3 tips for responding to a summons regarding copyright infringement
In the first place it is advisable to verify that the company/law firm is authorised to represent the photographer. If they aren’t, you may very well receive a similar demand letter from another company or from the photographer itself about the same image a few weeks later.
Secondly, it will be useful to verify the amount of the claimed license and/or compensation fee. How is that specified? Is it in proportion to the use and duration that the image was published online? Negotiating the amount and conditions before paying any compensation at all usually pays off in these type of cases. If this results in an agreement on a payable compensation, then it will also be useful to include an indemnity for (future) demands and claims from third parties regarding the image (such as the photographer itself or other companies that claim to be authorised to represent the photographer).
Thirdly and finally, it is advisable to remove the infringing photo from the website (and the server!) in order to prevent an increase of the license fee and/or compensation.
If you have received a demand letter for infringement of intellectual property rights, or if you are considering sending a demand letter, please contact Chantal Bakermans and we will explore the options.
Lawfirm Penrose, Amsterdam.
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