Web designers and entrepreneurs regularly use photos that come from the internet for their website or other advertising messages. However, this is not without risk as there may be copyright on such photos. A recently published court decision illustrates the considerations that are at issue here.

What is copyright?

The copyright is the exclusive right of the creator of a work of literature, science or art, or his assigns to it to discloseand multiply, subject to the restrictions as set by law. The case law provides that a work for copyright protection is eligible if it has its own original character and bears personal stamp of the author. This means, among other things, that the work may not be derived from another work and that banal and trivial elements of copyright protection are excluded. It is required that a work is the result of creative human work in which conscious, creative choices have been made. The Court of Justice of the European Union has specified this threshold in more detail and formulates the criterion as "an intellectual creation" of the creator.

If the aforementioned requirements are met, the copyright is created by operation of law, so without registration being required. The copyright on a work is valid from the moment of creation until 70 years after the creator's death. Or, when the copyright belongs to a company, 70 years after the first publication.

Copyright on a photograph

A photograph may be a work that is copyrighted in the sense of the copyright law, provided that the aforementioned requirements are met. As a copyright holder, the photographer can prevent others from using his photographs. Photographers often make use of parties that exploit their copyrights on their behalf and represent their interests such as Getty Images, Permission Machine and Masterfile.

These parties often act under license from the copyright holders or are assigned the copyrights to the work. They use the software developed for this purpose to scan the internet for use of the photographs or other copyright works for which they have obtained the copyright or a license. The advocates send the often unsuspecting user of these photo (s) a summons letter in which they demand a license fee and also often claim the costs for the (legal) representation. The claimed license amounts are usually not tender! In the absence of a payment, these parties regularly initiate proceedings before the court to obtain the claimed license fee.

Masterfile versus X

In April of this year, the District Court of Noord-Holland ruled on whether the user of a photograph on her website infringed the copyrights on this photograph. Masterfile represented the interests of the copyright holder Mediapro. The photo was a true-to-life and as clear and accurate as possible close-up of a temperature gauge of a car. The substantive discussion in this procedure focused mainly on whether there is a copyrighted work.

In order to reach a verdict, the judge had to assess whether the photo in question had its own original character and bear the personal stamp of the maker. The judge then ruled that there are variations possible in the lighting, distance and angle of the photograph, but that this is insufficient to be able to speak of an original work. For that, according to the judge, more is needed, such as answering the question of whether the photographer has made personal choices that can not be seen on the photo.

In this procedure, Masterfile and Mediapro have not been able to demonstrate sufficiently in which specific aspects the photo differs from other photographs taken by other photographers of a temperature gauge in a car. On the basis of the foregoing, the judge came to the conclusion that there is no copyright on this photo, so that everyone must be free to use without paying a license fee.

Masterfile and Mediapro did not appeal against this decision.

'Think before you start'

If you are looking for photos or other images to use on your website or in (other) advertising, it is advisable to check whether these photos or images are free to use or to pay a license fee in advance for the use of the photos.

If you do use a photo from the internet and are unexpectedly contacted by the copyright owner or a representative, it is advisable to check whether there is copyright on this photo. You should also assess whether the photographer has made personal choices with this photo that distinguish the photograph from other photographs.