Who owns the copyright to photographs on the internet?
22 April 2021
The recent decision by the EU Court of Justice in VG Bild-Kunst v Stiftung1 has added a degree of clarity to the question of copyright in photography which is placed on the internet. Despite millions of images being posted on the internet every day, however, it remains an area of law which is shrouded in complexity, particularly when it comes to photographs posted on social media.
The law covering the use of photographs is particularly opaque, with intellectual property rights coming into conflict with the rights to freedom of expression, privacy and data protection. It is important, at the outset, to understand that different rights exist depending on whether the person is the author of the photograph – ie the person who takes it – or the subject of the photograph – the person who is featured in it. In general, copyright exists only to protect the author’s rights. Any claim that the subject of a photograph may wish to bring, for example where they object to having their photograph taken and/or published, will need to be grounded in a claim for privacy, harassment or data protection. A subject’s rights, with particular emphasis on their right to publicity, is considered here.
A recurring, and complex, issue in respect of the day to day use of the internet, and particularly social media, is the copyright pertaining to photographs which are posted online. The focus of this article is the degree to which someone other than the photograph’s author – be they other users of the social media network, media organsations etc – may utilise a photograph without violating the author’s copyright in such material.
Photography and copyright – the basic principles
The general principal of copyright law, provided for by section 23 of the Copyright and Related Rights Act 2000 in this jurisdiction, states that the first owner of copyright of any work is its author. Section 21(h) provides that, in the case of a photograph, the author is the photographer. This is subject to certain exceptions, both under statute and at common law, the main ones being
a) where a work is jointly authored by more than one person;
b) where the photographer is taking the picture in the course of employment, in which case the employer will most likely own the copyright, unless the contract of employment states otherwise;
c) when the photograph is taken as part of a commission, for example when the photographer is instructed and paid to take portrait or wedding photographs. The issue will again be determined by the contractual arrangement between the parties, though in most cases the photographer will still hold the copyright;2
d) where the photograph is taken with the subject’s equipment, for example when a tourist asks a passer-by to take a photograph of them. In this case there will probably be an implied contract that the subject of the picture owns the copyright.
For copyright to vest in a photograph, it need not be a carefully-composed work of art. Even the simplest pointing of a camera at an object will result in the photographer being able to claim copyright in their ‘work’. In Antiquesportfolio.com v Rodney Fitch3, the English High Court set a low bar in respect of the degree of skill required to establish copyright in a photograph, holding that the capturing of images of pieces of furniture, which appeared in an online catalogue, was sufficient. The Court was satisfied that “The requirement of originality is low, and may be satisfied by little more than the opportunistic pointing of the camera and the pressing of the shutter button … Provided that the author can demonstrate that he expended some small degree of time, skill and labour in producing the photograph … the photograph ought to be entitled to copyright protection, irrespective of its subject matter.”
Photographs on the internet
The use of photographs on the internet has created particular issues in respect of copyright, and the degree to which third parties are allowed link, share and re-use photographs to which they do not hold the copyright. In certain cases, no issues will arise, as the image in question will be uploaded with few or no restrictions as to its further use, as with a ‘Creative Commons’ license. Users should satisfy themselves, however, that the traditional restrictions have been waived by the author, as it is unwise to assume that a photograph which is available on the internet can be freely copied and re-used.
Where the author has not clearly stated that their photograph may be used by third parties without restriction, the issues raised may vary depending on whether the photograph has been uploaded to the photographer’s own website, to a third party website, or to a social media platform. In the first two of these situations, decisions of the EU Court of Justice have dealt with scenarios involving the simple copying and pasting of photographs, the supply of hyperlinks to those photographs, as well as the ’embedding’ or ‘framing’ of such material. Unfortunately, the reasoning behind these decisions is not always clear, and it is an area of law which remains frustratingly opaque.
As regards photographs uploaded to social media platforms, the issue of copyright appeared to have been made more straightforward due to the terms and conditions of those platforms to which users sign up. Recently however, a series of decisions by US courts have cast doubt over previously-held beliefs as to exactly what rights were assigned by these terms and conditions, with a special emphasis on the rights of third parties to make use of photographs uploaded by other users to platforms such as Facebook and Instagram. These issues are considered in turn below.
Photographs uploaded generally to websites
When the author of a photograph uploads that image to the internet, he will be considered to retain copyright to that image in the same way as if he had stored a physical print in his place of work. The author does not relinquish the copyright to third parties by the simple fact of displaying the image on a website, from which any internet user could theoretically download a copy.
That does not mean, however, that other users are prevented from making use of those copyright-protected images. The most important principle in respect of the limitations of this right is that of a “communication to the public”, a principle which has become the subject of complex, and at times very convoluted analysis by the CJEU. In simple terms, the copyright-holder has the right to prevent their work being communicated to a “new” public by any third parties. The difficulty with this, of course, is that the uploading of a photograph to a website means that it is, at least in theory, available to be viewed by anyone with an internet connection. If a photographer places, or allows to be placed, a work of theirs on a website, there is in theory no “new” public to which any third party could conceivably make it available, meaning there is nothing to prevent that third party from using it as they wish.
In order to give effective protection to copyright-holders, the CJEU has therefore laid down guidelines as to what constitutes “communication to a new public” in respect of the sharing of images online. A public will be considered “new” if:
a) it is a public which was not envisaged by the author when they first made their image available, or
b) the technological means for displaying the image are different to those used by the author when they first made it available.
Hyperlinking of photographs: Firstly, and most significantly, if an image in available on a website that is either password-protected, or hidden behind a paywall, any unauthorised use of that image will be considered to be a communication to a new public, and therefore breach the author’s copyright. Notwithstanding the high degree of protection that the CJEU otherwise gives to the use of hyperlinks due to their importance in the efficient functioning of the internet, someone who provides a hyperlink to an image which is behind a paywall on the original website will be considered to be breaching the photographer’s copyright.4
If the material is not behind a paywall, but the author has put technological measures in place on the original website to prevent the image from being linked, any reproduction of the image by such means will also be considered to be a breach of copyright. Even if no such measures are in place, the Court will still consider the question of whether the image was placed on the original website, to which the link is provided, with the owner’s consent, and whether the person providing the link was aware of any lack of consent. In considering this, the CJEU’s jurisprudence involves a complex (and slightly baffling) consideration of whether the linking website is a profit-making entity, or whether it is of a non-profit nature.5
Embedding of photographs: A website that ’embeds’ (or ‘frames’) images from another website will not generally be considered to infringe the author’s copyright. When embedding a photograph in this manner, a piece of code on the new website instructs it to be retrieved from the source website – very often a social media platform such as Instagram or Facebook – each time a user visits the particular story. The material is integrated seamlessly into the new website, and can be seen immediately by the users; however, the image technically remains on the third-party server where it was originally uploaded by the photographer, and is not stored on the new website.
In the very recent decision in VG Bild-Kunst v Stiftung,6 the CJEU considered the question of whether the embedding of a photograph, which circumvents technological measures to prevent such embedding – whether those measures were put in place by the author or, as in this case, by an intermediary – is a communication to a new public, and therefore a breach of the original author’s copyright. The Court stressed the importance of whether “restrictive measures” had been put in place by the author to prevent the photographs being shared by third parties. If they did not, then the Court held that “in a situation in which an author gives prior, explicit and unqualified authorisation to the publication of his or her articles on the website of a newspaper publisher, without making use of technological measures restricting access to that work from other websites, that author may be regarded, in essence, as having authorised the communication of that work to all internet users.”
On the facts before it, however, the Court noted the jurisprudence relating to whether the material appeared online with the consent of the author in the first place, or whether it was password or paywall-protected. It held that the framing/embedding of photographs on a website would constitute a communication to a new public “where that embedding circumvents measures adopted or imposed by that copyright holder to provide protection from framing”, even if such material appeared on the original website with the author’s permission and was not hidden behind a paywall.
A difficulty with this jurisprudence arises with another recent decision of the CJEU. In Land Nordrhein-Westfalen v Renckhoff7 the Court considered the use of a photograph for an online presentation by a German school, with the photograph having been copied from an online travel portal. The photograph appeared on the original travel website with the author’s permission. No technological measures had been put in place to prevent its downloading, it was not behind a paywall, and the website which was the source of the photograph was credited in the school’s presentation. Nonetheless, the respondent – the photographer of the image in question – brought proceedings against the school for breach of his copyright.
With none of the requirements previously held as being necessary to be in place for a breach of copyright to be found, this would appear to reflect the situation described in VG Bild-Kunst v Stiftung Preußischer Kulturbesitz, namely that the author had “authorised the communication of that work to all internet users.”
The CJEU, however, held that the placing of the photograph on the school’s website made the material available to a public that was not already taken into account by the copyright holder when he authorised the initial communication to the public. The Court placed emphasis on the fact that the photograph in question was copied and pasted into the new website, rather than hyperlinked or embedded. For this reason, the photographer had lost control of the material to which he owned the rights, as even if he deleted the photograph from the original website, it would still appear on the school’s website. The Court’s statement, however, that the public viewing the school’s website was a “different pubic” to that viewing the travel website – ie that every website has its own, distinct viewing public – is clearly problematic, is inconsistent with previous decisions, and will hopefully be clarified by a future decision of the CJEU.
Photographs uploaded to social media
Further considerations will apply to photographs which are posted on social media platforms such as Facebook, Instagram or Twitter. When creating an account with one of these platforms, the user signs up to a set of terms and conditions. These T&Cs generally state that the platform does not claim any copyright over the material which its users post. Twitter’s terms of use state, for example, that that “what’s yours is yours – you own your content”. The user, however should be aware of the rights that it assigns to the platform itself, and to other users of the platform, under this contract.
The user must also satisfy themselves that in uploading material to their social media account, they are not breaching the intellectual property rights that a third party may hold in that material. While many photographs uploaded are taken by the user themselves – often so-called “selfies” – in other cases their image may have been captured by a third party who has not given permission for the photograph to be uploaded to social media. Several celebrities who have found themselves the subject of litigation in the US, having posted onto their social media accounts photographs of themselves which were taken by paparazzi. This issue is discussed below.
Social media platforms’ terms and condition
Generally speaking, users of Facebook, Instagram and Twitter allow the platform to utilise their content, including any photographs they upload, for their own purposes within the confines of that platform. The platform can re-post the images to remind a user of their previous activity; share the images with other users, and use the information in the image to direct commercial messages towards the users. Similarly, other users are free to re-use that image, within the confines of the platform, so as to share or re-tweet material to other users.
Instagram’s terms and conditions are typical of the type of rights which a user assigns in their photographs when the sign up. Owned by Facebook since 2012, Instagram dominates the online photo sharing market, with approximately 100 million photos and videos posted every day. When signing up to the platform, users assign to Instagram a “non-exclusive, royalty-free, transferable, sub-licensable, worldwide license to host, use, distribute, modify, run, copy, publicly perform or display, translate, and create derivative works of users’ content,” meaning the platform can do just about anything with a user’s photographs, without having to provide any royalties or license fees.
Where the controversy arises is the degree to which those images can be used away from the platform. There has perhaps been a presumption that in uploading photographs to Twitter, Facebook or Instagram, the user was essentially allowing third parties to use that image in any way they wished. News media habitually post on their own websites images of celebrities which are taken from the latter’s Instagram accounts, and regularly reproduce tweets posted by third parties, apparently unconcerned that they may be violating the user’s copyright.
Recent case law in the US, however, has examined the rights which users assign when they sign up with a social media platform, and has cast doubt over the lawfulness of this practice. While the issue is yet to be considered by the courts in this jurisdiction, or indeed in the UK or the EU, it is an area of law that remains unclear.
The US decisions
The law of copyright in the US is not entirely consistent with our own; for example, copyright must be registered in the US to be enforceable, while in EU Member States it vests automatically in the author upon creation of the work. It should also be noted in that in Goldman v. Breitbart News Network,8 the US court held that the practice of embedding an image from social media constituted a breach of the author’s copyright, a position which is inconsistent with current CJEU jurisprudence. Nonetheless, the decisions below are illustrative of the complex issues that can arise when photographs are posted to social media.
It is clear that the act of uploading a photograph to a social media platform does not allow third parties to use that photograph for their own commercial benefit, by copying it and then charging other users for a license to use it, as occurred in Agence France Presse v Morel.9 While the Court held that Twitter’s terms and conditions allowed users to re-tweet users’ photographs, there was no explicit right for third parties – in this case a photographic agency – to make commercial use of them.
The use of an image without making a financial gain may also, however, fall foul of the law. In June 2020, a New York District court in McGucken v Newsweek10 refused an application to dismiss proceedings which had been brought by a photographer against Newsweek magazine, the latter having used a photograph in an online news story which the photographer had uploaded to his own social media account. The Court held that it did appear that other users were allowed to ‘use’ content that was posted on their Instagram page. It also held, however, that there was not sufficient clarity in Instagram’s terms of use to conclusively state that Newsweek were allowed to embed an image from the photographer’s Instagram account and display it on its website, having first been denied permission to do so by the photographer.
This decision was inconsistent with a previous decision in Sinclair v Mashable,11 which had similar facts. In Sinclair, the Court had linked together Instagram’s terms of use, privacy policy and platform policy, and initially concluded that “because Plaintiff uploaded the Photograph to Instagram and designated it as ‘public,’ she agreed to allow Mashable, as Instagram’s sublicensee, to embed the Photograph in its website.” The fact that Ms. Sinclair has specifically refused to allow Mashable to use the photograph when it first approach her was considered irrelevant by the Court, which held that ”Mashable was within its rights to seek a sublicense from Instagram when Mashable failed to obtain a license directly from Plaintiff.” The court initially held that, in reality, the only manner in which users could restrict others from re-using their content is to make their account entirely private, which Ms Sinclair had not done.
Following McGucken, however, the court in Sinclair v Mashable was invited to reconsider its original decision. In June 2020, in Sinclair v Ziff Davis LLC,12 it reversed its finding as to whether Instagram’s terms of use provided “explicit consent” to embed the public content of third parties on their own websites. Around the time of these decisions, Facebook (which owns Instagram) issued a statement which sought to clarify the issue. It denied that its terms of use allowed organisations such as Mashable to embed photographs from Instagram into their website. Facebook stated that “Our platform policies require third parties to have the necessary rights from applicable rights holders. This includes ensuring they have a license to share this content, if a license is required by law.”13
This emphasis on the intellectual property rights of authors stresses that before posting an image to their own social media account, users must satisfy themselves that they are not breaching an author’s rights in that photograph by so doing. This is the case even if the photograph is of the account-holder themselves. A series of cases involving celebrities in the US, who uploaded photographs of themselves which had been taken by paparazzi, have been the subject of litigation. Arising out of these proceedings, the courts have imposed liability for breach of copyright on the likes of Victoria Beckham,14 model Gigi Hadid,15 actress Jennifer Lopez,16 and musician Justin Bieber.17
Facebook’s statement appears to dispel the widely-held belief that a photograph which appears on a social media site can be used by a third party in whatever way they wish. It now appears that the social media platforms’ terms and conditions, at least in respect of Facebook and Instagram, do not ask users to consent to their photographs being used by third parties on the latter’s websites, away from the platforms themselves, when the user uploads photographs to the platform.
It also appears to suggest that even if used within the platform itself, third parties must obtain permission from the copyright holder before re-posting images over which the author asserts copyright. This was held in the recent US decision of Iantosca v Elie Tahari Ltd.,18 in which the plaintiff photographer had taken pictures of a model wearing the defendant fashion designer’s clothing, and uploaded the images to his social media accounts. When the fashion designer re-posted the images on his own account, however, the photographer sued for breach of copyright. The Court held that the latter’s copyright had been breached, notwithstanding the fact that he had already posted the images to social media himself, and that he was credited as the photographer in the post made by Elie Tahari.
In EU Member States, however, it appears that if the fashion designer had simply provided a link to, or embedded, the photograph in question, no breach of copyright would have occurred, as per the Court of Justice jurisprudence discussed above.
Availability of damages
The damages that may be awarded for breach of an author’s copyright in a photograph are generally modest. As a general rule, the court will assess the sum that the person who used the photographs would ordinarily have to pay to the copyright-holder for a license to use them. Aside from photographs of world-famous celebrities, which could generate large sums for the photographer if syndicated worldwide, the licensing of a photograph whose subject is more mundane will generally be a few hundred euro.
The court may award further damages, however, to reflect either the detriment an author suffered if a third party had repeatedly refused to take down the photograph they had unlawfully used; if a third party had purported the photograph to be their own, or to reflect the unfair benefit that the third party gained by using the copyright-holder’s photographs.19
These principles were referred to by the High Court in Pablo Star Media Ltd v EW Scripps Company.20 The Court observed, albeit obiter, that “demands for €3,000 per photograph published seem to me to be generally disproportionate in principle … the user principle measure of damages would normally be the cost to the user of legitimately obtaining some suitable alternative photograph, if one was required.” It referred to the decision in UK decision Absolute Lofts, and held that “additional damages would only arise where unfair profits were being obtained… in general, a level of damages above the nominal would seem proportionate only if the defendant persisted in publication despite a request (unaccompanied by a demand for damages) to remove the material, or if the publication could be proven to have occasioned genuine and real damage or clearly in itself occasioned real and unfair profit to the defendant…”21
An issue may arise when it is not possible to ascertain what the copyright-holder would have charged to license their photographs, in circumstances where they may have been unwilling to license the use of those images regardless of any sum they may have been offered. In these circumstances, the copyright-holder might not be awarded any damages for breach of copyright, as the court held in the Australian case of Monte v Fairfax Media, “because Mr Monte would not have issued any license, he has suffered no loss in the form of a license fee or royalty forgone.”22
Summary
In pre-internet times, the issue of copyright breach of a photographer’s work was not so problematic, as the work itself was usually retained by the photographer and unavailable to the general public. With the availability of such works online, however, there is now little difficulty in any user of the internet being able to download high resolution images and share them with others.
In dealing with the issue of the copyright pertaining to photographs placed online, the courts have attempted to balance the rights of the author to make commercial use of their works, with the smooth functioning of the internet through the hyperlinking to, and embedding of, material placed online by third parties. In any consideration of whether the author’s copyright has been breached, a series of questions will need to be answered in respect of the author’s intentions when uploading the work, any restrictions they have placed on the material’s availability, and the manner in which the material has been used by third parties.
Explicit consent of the author does not always have to be obtained for their work to be re-used, but the simple availability of a photograph on the internet does not mean that the author has given up any rights they may have in that work. From the discussion above, it is possible to draw the following conclusions:
1 The copyright to a photograph, save for certain specific exceptions, rests with the author – ie the person who takes the photograph.
2 Third parties cannot make seek payment for, or attempt to license the use of, images to which they do not own the copyright, unless they receive the permission of the author.
3 The author retains copyright to their work even if they receive payment for it from a third party, but in so doing the author usually assign certain rights to the purchaser which allows them to use it in a manner designated in the agreement between the parties.
4 The author retains copyright to their work when they upload it to the internet, be it to a website or a social media platform, but assigns rights to other users of the internet to re-use their work in specific ways. In certain cases, the author may be willing to forego their traditional rights, and allow the image to be used shared in used without restriction, but users should satisfy themselves that this has clearly been intended by the author.
5 If the author makes the photograph freely-available on the internet, third parties can provide hyperlinks to it, or embed/frame it in their own website, without the requirement to obtain the permission of the copyright-holder. Third parties, however, cannot usually download the image, or copy and paste the image into their own website, as such use will be consider to infringe the author’ copyright.
6 If the photograph has been uploaded to the internet or a social media site without the author’s permission, however, then linking or embedding by third parties will infringe the author’s copyright. If the third party seeking to use the photograph operates their website for a commercial purpose, then the onus will be on that third party to establish whether or not the author had given their consent to it being uploaded.
7 If the author has consented to, but placed certain conditions on, a photograph being uploaded to the internet by a third party – for example, a photographer has licensed its one-time-only use by a news organisation – then it is not clear whether linking to or embedding this photograph will breach the author’s rights. In the US, it would appear that it does constitute a breach, but CJEU jurisprudence is unclear in this regard.
8 If the author has placed restrictions on the use of the photograph, either by installing technical measures to prevent linking/embedding, or putting access to the photograph behind a paywall or subject to the payment of a fee, then the image is not considered to have been made “freely-available.” Any unauthorised use of it, or link to it, by third parties in these circumstances will infringe the author’s copyright.
9 These principles would seem to apply equally to photographs placed on social media, notwithstanding the different terms and conditions of use to which the user of such platforms signs up. Social media users must ensure, however, that they own the copyright to images which they post online, or have permission to do so from the copyright owner. While they may be the subject of a photograph which they post, the copyright for that image may rest with an author who has not given permission for the image to be used in that manner.
Ends.
1 Case C-392/19 VG Bild-Kunst v Stiftung Preußischer Kulturbesitz
2 This has not always been the case at common law, as in the early case of Pollard v Photographic Company (1888) 40 Ch. D. 345, the unauthorised use of portrait photos of the plaintiff by the defendant photographers to illustrate Christmas cards was considered to be a breach of confidence.
3 Antiquesportfolio.com Plc v Rodney Fitch & Co Ltd,[2001] FSR 23
4 SeeCase C-160/15 GS Media v Sanoma Media Netherlands BV, Playboy Enterprises International Inc, Britt Geertruida Dekker
5 Case C-160/15 GS Media v Sanoma Media Netherlands BV, Playboy Enterprises International Inc, Britt Geertruida Dekker
6 Case C-392/19 VG Bild-Kunst v Stiftung Preußischer Kulturbesitz
7 Case C-161/17Land Nordrhein-Westfalen v Renckhoff (7 August 2018, EU:C:2018:634).
8 Goldman v. Breitbart News Network, LLC, 302 F. Supp. 3d 585, 586 (S.D.N.Y. 2018)
9 Agence France Presse v. Morel 934 F. Supp. 2d 547 (S.D.N.Y. 2013)
10 McGucken v Newsweek LLC No.19-cv-09617-KPF (S.D.N.Y. June 1, 2020)
11 Sinclair v Mashable, Inc, 2020 WL 1847841 (S.D.N.Y. Apr. 13, 2020)
12 Sinclair v. Ziff Davis, LLC, No. 18-CV-790 (KMW)(S.D.N.Y. June 24, 2020)
13 https://arstechnica.com/tech-policy/2020/06/instagram-just-threw-users-of-its-embedding-api-under-the-bus/?fbclid=IwAR06SilqDmFTEkjl7xpbXkmWzsrwPKaLnDLIa9NOPwTjfOdeC3aNh4y-pEU
14 Ramales v. Victoria Beckham Inc., et al., 1:19-cv-08650 (S.D.N.Y. 2019
15 Cepeda v. Hadid, 1:17-cv-00989-LMB-MSN (E.D. Va. 2017)
16 Splash News and Picture Agency, LLC v. Lopez, No. 2:2019-cv-08598 (C.D. Cal.).
17 Barbera v. Justin Bieber Brands LLC, et al., No. 1:19-cv-09532 (S.D.N.Y.).
18 Iantosca v Elie Tahari Ltd., No. 1:19-cv-04527 (S.D.N.Y. Sept. 18, 2020)
19 See Absolute Lofts South West London Limited v Artisan Home Improvements Limited & Anor[2015] EWHC 2608 (IPEC).
20 Pablo Star Media Ltd v EW Scripps Company [2015] IEHC 828
21 Pablo Star Media Ltd v EW Scripps Company [2015] IEHC 828, para 27.
22 Monte v Fairfax Media [2015] FCCA 1663, at para 15. The plaintiff was awarded $10,000 in “additional” damages, however, to reflect the pain and distress caused to him by the unauthorised use of the photograph.