Date: November 21, 2016
Modified November 14, 2023
Written by: Valerie Lipman
Reading time: +/- 2 minutes
The use of social media has become an integral part of many companies' current marketing strategy, as was discussed at the National DHZ Session. This often raises the question of whether photos and images published online can be copied just like that.
To answer this question, it is important to go back to the basics of copyright law. Under the Copyright Act, the creator of a work has the exclusive right to publish or reproduce (copy) his work, such as a photograph. Therefore, a photographer has the exclusive right to publish his photographs on the Internet. This means that photographs published on the Internet may not be used by anyone else without the photographer's permission. The fact that the photos are posted on the Internet, and perhaps even on various websites, does not mean that the photographer has thereby relinquished his copyright. This is because the rules of the Copyright Act also apply on the Internet.
Anyone wishing to use an image found on the Internet should therefore make sure whether the image is copyrighted and who the creator is, and, if necessary, seek permission before using it. A photographer, for example, may attach conditions to giving permission, such as paying a fee for the use of his photos. If a photograph is simply copied from another website without obtaining permission, this in principle infringes the photographer's copyright.
However, certain exceptions do apply, such as the so-called right to quote. This means that part of a work may be used, insofar as it is relevant to the context in which it is used. The requirements are that the quotation is used for a clearly identifiable purpose, that no more is copied than is strictly necessary, and that the source is cited. Contrary to what the name might suggest, quoting is possible not only from texts, but also from images or films. In addition, quoting from an image is not allowed if this serves only as decoration, but rather to discuss it, for example. Simply placing a caption to a photo is not sufficient for this purpose.
Copyrights must be distinguished from portrait rights. Copyrights belong to the photographer, while portrait rights belong to the person recognizable in the photograph. Thus, only when a selfie is taken do copyright and portrait rights fall into one hand.
A photograph taken by order of the person portrayed may only be used with the permission of the person portrayed. If the photograph was not taken on assignment, the person portrayed may oppose the use of the photograph to the extent that he or she has a reasonable interest in doing so. Such a reasonable interest may exist, for example, if the use of the photograph associates someone with things with which he or she does not want to be associated.
Unlike copying an image on one's own website, it is in principle permitted to link to content found on another website. After all, a hyperlink is not a reproduction or new publication, but merely a reference to the original website. It is also permitted to 'embed', whereby part of another website is visible on one's own website. In that case, it is not necessary to click on a link before the content becomes visible. A requirement for lawful linking is that the content was already public and freely accessible to all Internet users and is not located on a website that, for example, can only be accessed after logging in or after payment. After all, a new audience may be reached by the linking, as a result of which there is a new disclosure.
Of further interest is the following. When a link is posted to a website on Facebook or Twitter, for example, a random photo from that website sometimes appears automatically. This photo is not a link, but is placed separately on the website and is therefore a reproduction that the rightholder can oppose, as the District Court of Amsterdam ruled at the end of last year. Many will not consider this.
The option exists to disable the automatic posting of photos with a link. Despite the fact that the photo was automatically posted by the social media, the person who posted the link was held responsible by the court. The court did factor into this ruling the circumstance that the user was aware of how to disable automatic posting of photos. Therefore, according to the court, the disclosure of the photo had to be attributed to the user. Incidentally, it is not clear how the court would have ruled if the user had not known that the possibility existed to disable automatic posting of photos.
Of course, action is not always taken against the use of images in violation of someone else's copyright. After all, it may be the case that the rights holder does not know about it, does not mind, or because he wants to save the time and expense involved. However, a rights holder has the option of claiming damages from the infringing party. To determine the amount of damages, the license fee that the photographer normally charges for the use of his photos is often considered. Then, this license fee with a surcharge on top of it can be claimed from the infringing user. If the photographer brings an action to recover damages, the litigation cost award must also be taken into account. In cases involving intellectual property rights, including copyrights, the losing party is in principle ordered to pay the winning party's full legal costs. Therefore, these costs can also add up considerably.
Copying an image to one's own website without the creator's permission is not allowed and infringes his copyright. It is therefore always important to find out who is the copyright holder of a particular image and to ask permission before copying the image. Portrait rights should also be taken into account.
If a photograph is used without the photographer's permission, there is a chance that damages may have to be paid. As mentioned above, posting a link is allowed, without having to ask permission. However, in the case of posting a link on social media, extra vigilance is required.
This page was last updated on August 16, 2023.
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