The European Court of Justice (ECJ) has backed copyright owners in a recent decision regarding the use of photographs online.
The ECJ has ruled that it is an infringement of the copyright in a photograph to post a photograph on a website without the consent of the copyright owner, even where the photograph in question has been posted elsewhere on the internet with the consent of the copyright owner, and without any restrictions.
The court distinguished the act of re-posting photographs from the act of posting hyperlinks. It noted that its previous decision (in the Svensson case) that posting a hyperlink to copyright content that was freely available without any restrictions did not infringe copyright did not apply, since re-posted photographs would remain on a website even if the copyright owner decided to remove their work from the website where it was originally posted (whereas a hyperlink would be rendered obsolete by removing content to which it links).
We are often asked to advise on the use of photographs online, whether by those who want to know what images they may use, or how to respond to a claim they have received, or by copyright owners who wish to know what their rights are in relation to the unauthorised use of their images by third parties online.
This case is an important reminder to those hoping to use photographs online of the need to ensure that they have appropriate clearances in place to do so, even where a photograph has been made available elsewhere online without obvious restrictions on its use. This will be necessary unless the user can show that an exception to copyright infringement applies. The decision will be welcomed by copyright owners, as it confirms the right to control the communication of copyright works that they post online.
For further information please contact your usual contact at the firm on 020 3375 7000.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, September 2018