Copyright in photographic images reproduced on websites – fair use

Roman Kriman is an accomplished photographer with some 5000 images on the Jerusalem Shot website here.

Newsru is a Russian language news portal that is apparently the most popular Russian news website in Israel. The website is to be found here.

Kriman’s site indicates that his images may be used free of charge, but that the photographer must be acknowledged and a link from the picture is required to lead to the Jerusalem shot website.

Kriman sued Newsru for copyright infringement for failing to comply with the licensing conditions. Kriman requested 200,000 Shekels.

I assume the sum sued for covers both statutory damages for copyright infringement and for moral rights infringement. It is not clear if this is for multiple statutory damages under the old law or for a single offence under the new copyright law, but the ruling does relate to some dozen cases and applies the old copyright law despite apparently being filed in 2010 and relating to recent events.

That as may be, in her ruling Judge Chana Yinon of the Jerusalem Magistrate’s Court applied the old copyright law, accepted that there is copyright in original photographic images but was satisfied that the defendant attempted to comply with the licensing terms by crediting images in a page of credits, and that clicking on an image opened a hyperlink to source information. She considered the licensing terms sufficiently unclear that she found this practice a genuine attempt to comply.

Where images were wrongfully attributed to sources from which Newru had obtained them, but not to the photographer, she found Newsru not at fault. In this regard, during cross-examination, Kriman indicated that in his opinion it was wrong to reproduce an image without knowing and attributing the original source, whereas the judge preferred the defendant’s understanding that third parties can reproduce an unattributed image.

Somewhat confusingly, Judge Yinon cited Civil Appeal 2312/02 Druk vs. Danziger and also Tony Greenman’s work, Copyright in the Digital Age, to indicate that it is not enough to not know who the rights owner is, if the defendant has reason to believe that there is copyright in an image.

Deciding that there was no damage, the case was dismissed.

T.A. 10587-01-10 Roman Kriman vs. Newsru LTD. before Judge Chana Yinon, 12 September 2011

COMMENTS

I think Newsru’s behavior appears to be within the ambit of fair use. There is a problem though. Any photographic image of an identifiable person or scene or that shows clothes or cars or other items that clearly date the picture within the past 50 years, or indeed any colour photographic image is copyright protected unless the photographer actively puts it in the public domain. However, in such circumstances it is impossible to identify the rights owner. Internet sites, particularly non-commercial ones should be able to use images for illustrative purposes, acknowledging the rights owner if they know it, and certainly should not remove copyright notices. Where an image is not protected with a watermark or similar, one often cannot tell who owns the copyright and the image is therefore effectively in the public domain. I don’t think it is reasonable to prevent reproduction under such circumstances.

It seems to me that correct policy is to allow non-commercial websites to reproduce such content but to require them to take down the images if requested to do so. giving statutory damages without proof of damage seems unreasonable.

Nevertheless, the judge cites case-law and an Israel authority to the effect that one may have grounds to assume that an image is copyright protected even where the owner is not identified. It seems to me that any colour photo must be copyright protected since the law does not require a copyright notice. But this is not in the public interest. It does not serve the photographer or the wider public.  The boundaries of fair use are not clear.

I’ve discussed my use of images on this blog with world leading IP experts who concur that it is fair use. Is someone with a claim to copyright in an image requests that I remove a photograph or other image, I will do so immediately. Eventually technology may result in images being readily traceable so permission from the rights holder can be requested. We are not there yet. Copyright Law does seem to need an overhaul.

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