Example when Russian court applied exception for quotation of photographs

One media house has published several images on its web-sites in order to illustrate articles. The author and copyright owner of these images has not provided publishing house with permission to publish its images. Copyright owner has filed a lawsuit for copyright infringement.

The plaintiff claimed that defendant infringed his copyright by way of reproducing and making available without permission. Besides, defendant has deleted information identifying the author and copyright owner of images. The defendant knew who the author and copyright owner of these images is and could ask for permission, but did not do it and intentionally infringed copyright. The lawsuit sought compensation for copyright infringement, 20 thousands roubles for each image and each time of infringement, totally 1.160.000 roubles. The plaintiff also sought compensation for deleting information on author and right holder.

Defendant asserted that the use of images was lawful in accordance with article 1274 of Russian civil code – free use of works for informational, scientific and cultural purposes. The plaintiff also did not prove his authorship. The defendant argued the use of images falls under copyright exception. The defendant is news media, reporting on current events in Tatarstan, in Russia and in the world.

The court decided that provisions of article 1274 also cover Plaintiffs’ informational resources, where the images were taken from. The court pointed to Russian Supreme Court’s explanations. According to them “the law provides quoting exception in order to make information available for free dissemination”. The quoting is made to illustrate, confirm or refute the author’s position, is provided in law and can be made only from lawfully published works to the extent justified by the purposes of quoting.

Quoting means when work or part thereof of has been included in other work. In particular, the quoting is when the part of art work has been graphically reproduced. The art work can be painting, graphic or design. That means the image can be also used under exception of quotation without payment of remuneration and without author’s or right holders’ permission. Therefore the court concluded that the photographs in question can be included in other work, including literary works, like articles. The images in question have been quoted by defendant and the extent of such quoting is justified by its purpose.

The photographs in question are the part of Plaintiff’s photo coverage reporting on Plaintiff’s visit of Russian towns (Kazan, Ufa). The photographs in question contain information on facts and events seen and perceived by plaintiff and themselves along with textual comments are integral part of plaintiff’s publications. Besides, in some Plaintiff’s publication only photographs (without textual comments) reflect Plaintiff’s opinion and contain information the author wanted to report. The defendant only quoted plaintiff, it has communicated plaintiff’s opinion and creative idea and reported information on events and facts seen and reflected by plaintiff.

The plaintiff’s argument that the photos in question do not contain any information has been held by the court as unreasonable. In this case in order to quote the plaintiff’s photo report it was obviously necessary to use plaintiff’s photos. The defendant has abided all conditions of exception provided in Russian civil code for use of copyrighted works for informational purposes. Moreover, commercial activity of defendant does not exclude informational nature and informational purpose of publications in question. When the defendant exploited plaintiff’s photos in its publications, there was not prohibition to use them expressed by the plaintiff.

The court of first instance decided that there was not copyright infringement of plaintiff’s photos. The defendant has used them lawfully in accordance with article 1274 of Russian civil code for informational purposes. Besides, defendant’s publications mention the source of quotation and the name of author. In relation to those photos published by defendant without mention of author, the court held that there is no violation of moral rights because the plaintiff did not prove that he is author of such photos. Therefore the court did not find the reason for compensation.