Internet images used without permission
What happens if you pull a photograph of the Internet and uses it without permission. In this blog post, I shall try to keep current about the case law and out-of-court settlements that exists in this area.
When photographer Lars Flem took a photo of a friend's broken iPod Nano, he put a picture of the mishap on Flickr. As many other users on Flickr (including yours truly), he put it there under a Creative Commons Attribution Noncommercial License. This is a license type that let other people use the image provided they make proper attribution (i.e. name Lars Flem as the photographer), except for commercial purposes, such as advertising, advertising supported publications, or publications that are sold for money. The license is very clear on this point. To use this particular image for commercial purposes, you have to buy the rights to do so from the photographer.
But this didn't stop a major Norwegian chain-store selling electronics and appliances from downloading the image from Flickr and use it to advertise their “Happy Care” appliance insurance scheme. The photographer spotted the ad, and contacted the store and asked for an explanation. After some discussion, the store admitted breech of copyright, and initially offered the photographer goods valued NOK 10000 (USD 1500) as compensation. The photographer first wanted to know how many times the photograph had been used. It turned out that the photo had been used three times. Normally, a company will pay NOK 1350 (USD 200) for each use of such a photo, so had the store bought the rights to the photo before using it, their cost for three ads would have been NOK 4050 (USD 600).
However, in Norway, it is usual to double the amount if the photographers moral rights has been violated by not naming him or her as author of the work, and if an uncredited work is used in advertising, the amount is usually tripled. After thinking things through, the photographer asked for NOK 14000 (USD 2150) as restitution. This was accepted by the chain store.
Below is a summary of other court-cases and settlements that I am aware of:
- They stole an image of my son and just had to pay USD 4000. Norwegian electronics shop uses snapshot of photographer's infant son, apparently lifted from photographer's blog, in two catalogues without permission. Resolved through settlement for NOK 20000 (USD 4000). See also Restitution for copyright breech (in Norwegian).
- Young Conservatives-magazine Stole Front Page Photo (BT - 2007-01-17: no longer online). An image marked "© All rights reserved" was downloaded from Flickr and used on the front page of a magazine for members of a political youth organisation Unge Høyre (Young Conservatives) and also on their website without permission. Resolved through settlement for € 5980. (USD 7300)
- Extended use of competition photo compensated. A photo of the photographer's infant daughter was submitted to a photo competition in 2006. It did not win any prices. The photo was later used in several newspaper adverts by the company hosting the competition, and also given to a partner of that company, which also used the photo for advertising. The infringers first refused to pay for the use, on grounds that by entering the competition, the photographer had implicitly agreed to a clause in the competition's rules that in effect transferred unlimited usage rights to them for all photos entered. However, the there was no “click-wrap” or other affirmative action that had to be taken to indicate “agreement” with this rules, and the photographer denied ever having seen or consented to these rules. This case was finally resolved through a settlement, where an undisclosed (but substantial) amount was paid by the two infringing companies as compensation to the photographer and the model.
- Gregerson v. Vilana Financial. An epic drama where it took photographer Chris Gregerson two and a half year and countless appearances in court to win against an unscrupulous copyright infringer, Andrew Vilenchik. In the end, he was awarded USD 19 462 in damages. However, his tale is also a textbook example on how the US legal system can be abused to bully and intimidate someone. Full honours to Chris Gregerson for staying the course and not letting the bully get away with it!
- Bjorbekk prevails against NRK (no longer online). The Norwegian Broadcasting Service (NRK) used a photo by photographer Geir Elgvin in a pilot for television show without permission. The case was settled out of court in March 2008 with NOK 6000 (USD 950) as compensation.
- Agderposten "stole" the same image again (in Norwegian). In 2008, the regional Norwegian paper Agderposten used an image by photographer Geir Elgvin without permission. The paper initially offered to settle for NOK 600 (USD 95). After Elgvin hired a lawyer, the paper settled out of court and agreed to pay NOK 5000 (USD 800) plus the fee to Elgvin's lawyer. Elgvin also received a one year complimentary subscription to the paper. In July 2009, the same paper used the same image again, this time it was manipulated by the paper. The final outcome of this case is unknown.
- Belgian and Israeli Courts Grant Remedies to CC Licensors. In two separate cases, one in Belgium in 2010, and one in Israel in 2011 (see next item), the courts have found that violation of a Creative Commons license is a violation of copyright, and that damages should be awarded according to copyright law. In the Belgian case, un-attributed, commercial derivative use of a 20 second song segment released under a Creative Commons BY-NC-ND (Attribution, NonCommerical, NoDerivatives) license by the Belgian band Lichôdmapwa. The court awarded the band EUR 4500 (USD 6000).
- Israeli court enforces CC License for the first time. This case from 2011 was about 15 pictures put on Flickr under a Creative Commons BY-NC-ND license. The pictures was downloaded and used without permission in a travel book. The court found that this was copyright infringement, and awarded the plaintiffs a total of NIS 47 000 (USD 12 500) as damages.
- Court decides in favour of photographer (in Norwegian). In 2012, Stavanger Tingrett decided in favour of the photographer and original publisher in a dispute about a photograph used without permission by Lokalavisen AS (a local free paper). Restitution was set to NOK 14835 (USD 2470). According to the report, the photographer had tried to get reasonable compensation before going to the courts, by the editor of Lokalavisen AS had refused all communication.
- Morel vs. AFP. In 2010 freelance photographer Daniel Morel uploaded photographs taken during the 2010 Haiti earthquake to his Twitter account. Eight of these images, via Twitter user Lisandro Suero, was downloaded from Twitter and distributed to AFP's clients. Morel sued AFP for violating his copyright. On November 2013, judge Alison Nathan in the Thurgood Marshall US Federal Court in downtown Manhattan awarded photographer Daniel Morel the maximum possible damages, a total of USD 1.2 million for the eight images lifted from Twitter (USD 150 000 per image). The jury also found against the agency for multiple violations under the Digital Millennium Copyright Act: specifically for altering Copyright Management Information and for adding false and misleading CMI. For this they awarded Morel a further USD 20 000.
Updates: There has been several other settlements about compensation. For reference, I list those I know about below. See also the case law page on the Creative Commons Wiki. Please leave a comment or contact me directly if you know about other cases that are relevant.