FAQs - Copyright in photographs

Watermarks or the “©” symbol are not required for the purposes of copyright protection. Under the 1988 Act, copyright arises automatically at the moment an original, artistic work, such as a photograph, is created. As such, finding a photograph without a watermark does not mean that it is not protected by copyright.

A common misconception is that if a photograph is accessible through Google Images, it must be free to use. Google is a search engine that finds content based on your search parameters. It is not a photograph licensing company and “Google Images” is not a collection of photographs in which Google has rights. The copyright in photographs shown in a Google search is ultimately held by the person who created the photographs or any person / company to whom the copyright has subsequently been transferred.

As the internet is so vast, many assume that the chances of being caught out for copyright infringement are miniscule. However, nowadays, copyright compliance agencies work directly with photo libraries, photographers and other rights holders to track down cases of online copyright infringement. This is often done through use of sophisticated digital fingerprinting technology, which matches the photograph on your website with the photograph owned by the relevant rights holder in an online trawl.

Once an infringement has been identified, rights holders can request that the infringing photograph is removed from your website, together with payment of compensation covering the period of unauthorised use. Where a settlement cannot be agreed, the matter can be escalated to solicitors and, in some cases, to the courts.

When confronted with a claim for copyright infringement, many are quick to point to the defence in section 97(1) of the 1988 Act. This provides that if you “did not know or have reason to believe that copyright subsisted in the work to which the action relates”, the copyright owner is not entitled to damages.

At first blush, you might be forgiven for thinking that this is a “get out of jail free” card for infringers. However, it is not that simple.

In the case of Nottinghamshire Healthcare National Health Service Trust v News Group Newspapers Ltd [2002] EWHC 409 (Ch), Mr Justice Pumfrey discussed the application of the section 97(1) defence in relation to photographs:

“This is a very limited defence.  It goes only to the defendant’s knowledge, whether copyright subsisted in the work. It is only available if on the facts it is reasonable to suppose that copyright did not subsist in the work. As a practical matter, this can only be the case where the work is old, or is of such a nature that copyright is unlikely to subsist in it. It is not available in the case of a photograph, for example, unless that photograph is very old (it subsists for the life of the author and 70 years in addition).”

Photographs of the kind produced by commercial photographers almost always benefit from copyright protection as original artistic works. There will be very few situations in which it would be reasonable to assume that such photographs are not covered by copyright.

Furthermore, section 97(1) is not a defence to liability for copyright infringement, only damages. This means that even if a section 97(1) defence was successful, an infringer could still be vulnerable to other remedies if found to be liable for copyright infringement, such as interdict (injunction in England).

The question to consider is whether a substantial part of the copyright protected work is being used.  You might think that as you have only used half of the work (or less) that copyright infringement has not occurred but it is not that simple. Instead of thinking solely about what percentage of the work has been used, the test is one of quality rather than quantity. The courts will consider whether “substantial use has been made of the skill and labour which went into the creation of the” original copyright work (Copinger and Skone on Copyright 18th Ed.). This is nicely explained in the case of Designers Guild Ltd v Russell Williams (Textiles) Ltd (trading as Washington D.C.) [2000] 1 W.L.R. 2416, HL (at page 2426).

“the question is whether what has been taken constitutes all or a substantial part of the copyright work. This is a matter of impression, for whether the part taken is substantial must be determined by its quality rather than its quantity. It depends upon its importance to the copyright work. It does not depend upon its importance to the defendants' work”.

So whether or not copyright infringement has occurred when you have not used the whole of the copyright work, will depend upon whether or not the part used contains a substantial part of the original.  As such, even if you have only used a small percentage of the work, copyright infringement could still occur and you would be liable to the copyright owner / exclusive licensee for the period of unauthorised use.

The defence of fair dealing is commonly invoked but often misunderstood.

At a high level, “fair dealing” refers to a group of exceptions to copyright law which permit the limited use of copyright protected works without the copyright holder’s consent. The 1988 Act outlines a number of situations in which fair dealing is a legitimate defence to a claim of copyright infringement, including:

• Research or private study;
• Criticism, review or quotation; and
• The reporting of current events.

One misconception is that “fair dealing” includes use of someone else’s photographs in a news article or blog without asking for permission. There are a few problems with this. Most importantly, the “reporting of current events” exception does not apply to photographs.

In relation to other exceptions, such as criticism, review or quotation, the use of the photograph must be accompanied by a “sufficient acknowledgement”. This generally means that the photographer should be credited wherever a photograph is used without permission under this heading, unless this would not be possible for reasons of practicality.

Before you use a photograph on your website, you should therefore carefully consider:

• How do I intend to use the photograph? If the photograph is to be used commercially, for example as a design feature of your website, or to report on current events, a licence from the copyright holder will almost certainly be required; and
• Do I know who the photographer is? If the photograph is being used for the purposes of criticism, review or quotation, you will need to ensure that the author is sufficiently credited.

Whilst there are some exemptions that are specific to charities including the ability to make a copy of a copyright work in a format that can be accessed by a someone who has a disability, generally, charities and not for profit organisations are subject to the same copyright infringement provisions as everyone else. This means that if a charity / not for profit organisation uses a copyright protected work it will be subject to the copyright infringement provisions of the 1988 Act and the resulting consequences.

Yes. Section 20 of the 1988 Act provides that the communication of a work to the public is an act restricted by the copyright in an artistic work. Under the 1988 Act, “communication to the public" includes making the work available to the public via electronic transmission in such a way that members of the public may access it from a place and time individually chosen by them. Therefore, as soon as the copyright work is displayed on a website which is accessible to the public, a communication to the public has occurred and as a consequence, so has copyright infringement.

This has been shown in the CJEU case of Ochranný svaz autorský pro práva k dílům hudebním, o.s.(OSA) v Léčebné lázně Mariánské Lázně a.s., (Case C-351/12) where the CJEU ruled that a spa operator was communicating copyright works to the public by distributing the signal carrying the copyright protected works in the guests’ rooms.

According to the CJEU the term “public” as outlined in Article 3(1) of the Copyright Directive refers to an indeterminate number of potential recipients and therefore, a fairly substantial amount of people. As the spa would have welcomed a substantial amount of guests continually throughout the day, the CJEU decided that they had communicated the copyright protected works to the public. Therefore, it is not the actual amount of people who have had access to the works, but the potential amount of recipients that will be considered when determining whether the communication will be a “communication to the public”. Therefore, when a copyright work is communicated on a public website, the fact that there is an indeterminate amount of recipients will generally mean that, when the copyright work is uploaded, a communication to the public has occurred.

Copyright infringement can occur even when the infringer has no knowledge of it or has not intended for the infringement to occur.

Liability for infringement in terms of the 1988 Act is strict and the infringing act is carried out as soon as the photograph has been communicated to the public (i.e. displayed on the infringer’s website without a licence from the copyright holder).

Employers are vicariously liable for the acts of their employees where the employee commits an infringing act during the course of their employment. Therefore, companies should have strict procedures in place to ensure they have the relevant licences in place before using any photographs or other copyright works.

Although the photograph may have been uploaded by a website designer or third party, the ultimate responsibility for ensuring that the right to use the photograph has been obtained lies with the website owner. The website owner is the party who has communicated the copyright protected work to the public in terms of the 1988 Act. Should it transpire that the photographs provided by the website designer are not appropriately licensed, this may place the designer in breach of warranty depending on the contractual arrangements in place. However, this will not affect liability for copyright infringement.

As unfair as it may seem, a person who is the subject of a photograph does not necessarily have the rights to use it or prevent others from using it.Image rights are not a feature of UK IP law which means that if you don’t have an agreement with the copyright owner / exclusive licensee, you will have no right to use the photograph despite being in it.

Celebrities such as Dua Lipa, Gigi Hadid and the Jonas Brothers have recently all had claims brought against them due to their unauthorised use of photos in which they feature.

The Court of Appeal decision in Robyn Rihanna Fenty and others v Arcadia Group Brands Ltd and another [2013] EWCA Civ 3, made clear that it is possible for celebrities to bring passing off actions in order to prevent the unauthorised use of photographs which they are in, in very limited circumstances (i.e. if the court deems that it is likely that consumers would believe that that celebrity had endorsed the use of the photograph).

In this case, Topshop used a photograph of Rihanna on t-shirts which were then available to purchase. The Court of Appeal found that there was passing off as Rihanna had worked with Topshop and other high street retailers in the past, she was a style icon and the photograph used was similar to the photographs used for her album at that time.

However, the Court of Appeal did make clear that use of a celebrity’s photograph on an item of clothing / garment did not automatically amount to passing off and that a celebrity does not generally have the rights to control the use of photographs of them in the UK because image rights are not a feature of the law.

It is often assumed that if no profit is made from the use of a copyright protected work that no damages are payable to the copyright holder. This is not the case.

Damages in relation to copyright infringement can relate to the loss suffered by the copyright holder as an alternative to the profit made from use of the photograph.  The loss is typically assessed as the amount the copyright holder could have earned had the infringer purchased a license prior to using the photograph, which is usually in accordance with a standard licensing practice.

The amount charged for use of the photograph, and therefore the loss suffered, will take into account the use of the photograph, its placement on the website and the duration of the use.

Moral rights are rights concerned with protecting the author’s personal relationship with their work and the non-economic value of it (e.g. the intellectual / emotional work that has been put into its creation).

There is a general misconception that moral rights can be claimed much more readily than is actually the case. Moral rights are personal to the photographer meaning they cannot be assigned including to an employer. This has been discussed most recently in the case of The Front Door (UK) Limited t/a Richard Reid Associates v The Lower Mill Estate Limited, Habitat First Limited, Willmore Iles Architects Limited, Savills (UK) Limited [2021] EWHC 2324 (TCC) .

Here the Judge set out that as the Claimant was not the author of the copyright protected works, it did not have and could not acquire any moral rights in respect of the works. The author of the works had been an employee of a company that had assigned copyright to the Claimant. It was made clear that the moral rights were personal to the author/employee and these could not be assigned to his employer nor the Claimant.

Therefore, an employer of a photographer (regardless of whether copyright has been assigned or not) cannot claim moral rights in respect of any copyright infringement.

It is only the author of the copyright works that can claim for a breach of moral rights e.g. in the case of a photograph, the photographer.

This depends on the licence terms that have been agreed with the copyright owner or exclusive licensee.  If we assume that the licence is only for future use of the photograph then you will still be liable to pay damages (in addition to the licence fee going forward) for any period of past unauthorised use.

Equally, payment of the damages amount for past unauthorised use of the copyright protected photograph does not usually mean that you are entitled to use the photograph in the future without paying the necessary licence fee in addition.

Generally, if the owner or exclusive licensee of the copyright in the photograph has a standard licensing practice for the copyright work, they can claim damages amounting to the total that would have been paid if a licence had been obtained prior to the unauthorised use of the copyright work (plus potentially more if the conduct of the infringer is flagrant or a breach of moral rights occurred).

Therefore, in instances where there is a standard licensing practice, regardless of whether a similar photograph can be purchased for less elsewhere, the copyright holder / exclusive licensee is entitled to the amount that they have lost when the photograph was used without payment of the required licence.  In addition, the cheaper photograph may be licenced of differing terms to the use that was made of the copyright protected photograph.

Whether or not the infringer is aware of the copyright owner / exclusive licensee’s licensing practice is irrelevant to determining liability for copyright infringement or the amount of damages that can be claimed.