Are you an entrepreneur? Then you probably have a website and/or social media channels. And a website and social media channels always look better when they have professional and relevant images. Fortunately, in this digital age, images are easy to find: you can find what you are looking for with just one click of the mouse. But beware. Such images are usually copyrighted. If you violate these rights, you can be sued for damages. And this is not always done fairly.
Copyright and images found on the Internet
If a photograph meets the conditions for protection by copyright, the photographer is the first one to have the exclusive right to exploit it. Without his consent, others may not use the photograph, unless such use falls under one of the exceptions for which no consent is required.
This simple rule that you may not use someone else’s photo also applies if the image can be found freely on the internet. It also applies whether or not the copyright symbol © is attached to the photo, and whether or not you yourself are acting in good faith.
Image management
Do you have to ask permission? Yes! And to whom? To the photographer? At first glance, yes. After all, in copyright law we speak of “the right holder”, and in principle that is the author, the creator of the work. In the case of photographs, it is the photographer who is the copyright holder. But he can also have assigned his copyright to a collective management organisation, such as Sabam or Sofam. These organisations can therefore also grant the required permission.
Authors can also join independent management organisations, such as Permission Machine. In contrast to collective management organisations, independent management organisations are neither directly nor indirectly owned by the rights holders in question. They are organisations with a commercial purpose.
Aggressive practices
Permission Machine is one of the independent management organisations that many consider to be “aggressive”. But what exactly does it do, and how does it operate?
Unlike Sabam, for example, Permission Machine does not “actively” exploit its clients’ rights: it does not have a catalogue of its clients’ materials that others can view and from which one or more photos can be chosen to use in exchange for a payment.
What Permission Machine does do, however, is track down the copyright infringements of its clients. It does this by using search software (reverse image tracking technology). When it discovers an infringement, it sends a letter to the infringer, asking him to sign a retroactive and paying licence for the unlawful use of the image material in question (including 1 year’s “free” use in the future): this actually amounts to paying damages for the unlawful use. However, if the letter is not responded to in time, letters of formal notice follow, threatening legal action.
The problem with using reverse image technology, however, is that it can successfully detect where a photo is being used, but this “dumb” technology is not capable of assessing whether or not this use constitutes an infringement: it could fall under one of the exceptions where the use is permitted, or it could be that you already have a licence for that photo! Important nuances that Permission Machine does not seem to make when it takes action.
Permission Machine sends out its letters, and of course hopes to derive as much revenue from them as possible. If you receive such a letter, then it is useful first of all to check whether there is any infringement: perhaps you have bought the photo correctly? Or are using it for an educational purpose, or in a quote, etc. There are quite a few exceptions provided for in the Copyright Act.
Is this practice legal?
It is not per se prohibited for an independent management entity not to actively exploit its clients’ copyrights, but only to detect infringements of those rights and to claim damages for those infringements.
However, the Court of Justice did state earlier in a court case between Mircom and Telenet that if the management organisation were to use measures or remedies to that end, the national court has the power to assess whether the use of those measures or remedies constitutes an abuse of rights. In this assessment, the national court may take into account, inter alia, whether the management entity has a financial interest in maintaininginfringements of its clients’ rights and does not attempt to remedy those infringements.
The Commercial Court of Ghent has recently made use of this possibility. Permission Machine had filed a lawsuit against Kortom vzw concerning the alleged unlawful online use of 3 photos. In its judgement of 3 November 2021, the Court stated that Permission Machine does indeed derive financial benefit from the fact that infringements of its customers’ copyrights “are being maintained”.
Permission Machine’s claim was therefore abusive in this specific case (and thus rejected). The Commercial Court of Ghent stated that Permission Machine did not have sufficient evidence that it had indeed acquired the rights to the photos. Furthermore, it criticised the fact that Permission Machine automatically assumed that the photos were protected by copyright in the first place. The Court also stated that the reimbursement claimed by Permission Machine was not in line with the indicative rates and was increased with unproven costs.
Conclusion: check for copyright!
It is not because copyright holders have the law on their side, that there are no limits to the way they can exercise these. The judgment of the Commercial Court of Ghent in the case of Permission Machine v. Kortom vzw demonstrates this once again.
At the same time, of course, this does not mean that you as an entrepreneur are free to ignore the rights of photographers and, more generally, creatives. So always be aware of the fact that copyright may apply to visual material and that it is best to respect this. Even if this material is publicly available on the Internet.
Would you, as a creative, like to know more about the protection of your work? Or are you an entrepreneur and do you have doubts about whether you can use a certain image for your company? Contact our experts at hallo@dejuristen.be!
Written by Sofie Moore, Legal Adviser deJuristen, and Kris Seyen, Partner deJuristen.
