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Proper handling of image rights

29 April 2019

Without images the internet would be a dull and boring place. Most people don’t understand image rights and the repercussions that come with not handling image rights correctly. This could be extremely costly to your organisation when infringed upon. The infringer must not only bear the default charges but also pay damages. By understanding image rights such costs can be avoided: It is not uncommon for these costs to arise because of ignorance. Basic knowledge of copyright can protect you from getting an unwanted fine.

The creator as rights holder

The copyright protects the rights of the creator of the work. The creator of a photo is always the one who triggers the shutter and for images that are created on the computer, or are drawn by hand, it is the one who operates the tool. The author is also the owner of the copyright. This right arises automatically and can not be given. In addition, there are still rights, such as the right of reproduction and publication.

License rights to pictures

The author can’t pass on his copyright, but he can grant usage rights for his images. The author thus has the opportunity to grant a third party the right to use an image to a certain extent for a fee.

For operators of a website, various options are available at this point to obtain such user licenses.

Possibility number one: Commissioning a photographer or graphic artist. Although this can be very costly under certain circumstances, the site operator often benefits from exclusive licenses. That means he has pictures that no one else has.

Possibility number two: A cheaper option is to make use of image databases, free or paid, such as Shutterstock or Unsplash. It’s important to understand the terms and conditions of these sites. The terms and conditions are usually outlined on how the images may or may not be used. 

An example of a website asking the user to credit the creator,

Editorial and commercial use of images

As mentioned, apart from the possibility to create pictures on your own or by commissioning a photographer or designer, there are also picture databases like Shutterstock or Unsplash to make use of. Such databases often provide a wealth of different licensing options. There are however two main licenses: commercial and editorial.

If a picture is subject to a commercial license, it may, for example, be used for advertising. At Shutterstock, for example, the following statement applies: “Stocks for commercial use can be integrated into a product, service, advertising campaign or almost any scenario.” Allot can be done with such a picture. For example, it may also be printed on cups intended for sale. In contrast, there is the purely editorial license. At Shutterstock you can see the images, which are purely for editorial use. Editorial in this context simply means “non-commercial”. That is, these images may be used for non-commercial blog posts and news.

Recognition of authorship

In addition to the exploitation rights, there is also the right to recognition of authorship. That means the author has the right to be named. The author may determine how and where he is named. If nothing is said in the license agreement, it can be assumed that the author wishes to be named by his name in the immediate vicinity of the work, for example directly below it.

Image platforms also determine how this recognition of authorship has to be done. Free “royalty-free” platforms also set these rules. For example, Shutterstock would like the creator to be named “[name] / shutterstock.com”. Incidentally, the much used © does not have to be added because this sign comes from US law and is meaningless in Germany.

The citation right to pictures

At the start of the post it was mentioned that images can’t be used without citation. For bloggers and news portals, the so-called “picture quote” is of great importance. If there is no permission from the author, there is a peculiarity in the picture quote:

Passages from texts may be used to support a contribution. Pictures must always be cited as a whole work. A partial citation, such as in texts, is not possible. Therefore, it must be considered very well, if the picture quote is really necessary.

As a rule of thumb, citations may be used as a receipt. Like saying that this document may only be possible with this exact picture.

For example, if a post is written about the new BMW, then it is not necessary that a picture is “quoted” from the company’s website. The author can – figuratively speaking – also simply go to the nearest BMW plant to create a picture himself.

If, however, reported on a particular Instagram post, the contribution can only be occupied by a screenshot of this post.

In order to cite images correctly, as in any citation, the reference must be given.

Copyright infringement

There are many different copyright infringements. There is, of course, the normal copying of the image. But even the concealment of authorship or the processing of a foreign image constitutes copyright infringements.

If you yourself are affected by an injury, there are two claims: injunctive relief and the claim for damages. The latter, however, exists only if the infringement was culpably committed, ie intentionally or negligently.

For example, if an image is used by a database that leaves a legitimate impression, the user of the image can assume that everything is legal. If it now turns out that the picture should not have been offered, then the author is entitled to injunctive relief against the user, but not to the claim for damages. On the other hand, if the platform makes a dubious impression right from the start (missing imprint, no general terms and conditions and so on), the user has to be accused of at least negligence. The author would, therefore, have a claim for damages.

Händlerbund helps!

Many online retailers struggle with the legal protection of their Internet presence. Händlerbund can assist you with legal questions regarding this topic. If you as a retailer opt-in for our extensive legal services, you can make use of discount code P2122#2019 for 3 months off the membership package of your choice. Find out more. 

About the author

Sandra May has been a legal expert for online retailers since September 2018. Already during her studies, she specialised in the field of competition and copyright law. After completing her legal clerkship, she ventured into journalism. Explaining legal facts in a clear and comprehensible way for laymen is part of what she loves to do.

Original post in German. Translated by Doopic

 

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