The case is about quotation of images. One media house (defendant) has published in its articles and on its web-site the photographs of Russian popular blogger Varlamov (plaintiff). Varlamov did not like it and has filed a lawsuit for copyright infringement. He lost the case. The court of first instance ruled it was simple quotation – copyright exception. Varlamov appealed.
The court of second instance held that defendant did not comply with all provisions of article 1274 of Russian civil code. The court also held that inclusion of photos in question in defendant’s publications is not quotation. Quotation means word to word replication of text but no other graphical content (photo or video image), and insertion in new work a textual part of pre-existing work. The volume of quotation must be justified by its purpose.
Therefore exploitation of photographs, absolutely expressed in graphical form, is not quotation, because the photos were exploited as pictures to articles, what is permitted only for educational publications. The court analysed Supreme court’s practice overview and concluded that the internet is not public place, available for anyone to visit. Therefore according to appeal court exception is not to be applied in this case. The plaintiff has proved infringement of his copyright in photos. The court also approved the sum of compensation for copyright infringement – 580 thousands roubles.
As regards to violation of moral rights, the court decided that for finding of violation of moral rights it is enough to use photos without information on author. Defendant’s argument that it became aware of photo’s authorship only after filing of lawsuit has been declined by the court. Therefore the plaintiff is also entitles for compensation for violation of his moral rights. Defendant filed cassational appeal. Cassation examine whether material provisions of law have been applied correctly.
The court of cassation has agreed with appeal court as regards to mere use of photos in question where the information on copyright missed, but did not agree with court of appeal as regards to quoting of photos. According to court the article or other textual work, the photo etc are the way of expression of work. The character of work means theme of work in question.
The appeal court did not consider the fact that the work, i.e. photo, has been made publicly available in accordance with Russian law. The appeal court did not interpret quotation correctly. It has applied material legal norms not correctly and did not consider all circumstances of this case. Therefore decision of appeal court is to be repealed in the part of compensation, because it was adopted in violation of material legal norms. The court of cassation does not examine all proofs, therefore the case has been referred to lower court for consideration at novo.
The lower court, considering the case de novo, held that according to Russian Supreme court graphical works can be quoted by other persons precisely to illustrate, confirm or refute author’s position if such persons comply with certain provisions – informational purpose of quotation, the volume of quotation must be justified by purpose of quotation, the quoted work must be published in accordance with law.
Therefore, the court of first instance reasonably concluded that the photo can be incorporated in other work, including in text, and become an integral part of new work and such use of photo can be qualified as quotation. Therefore the court of first instance was right. The use of work in news reports cannot be considered as commercial exploitation of works.
The Russian copyright law does not provide quoting only for one object of intellectual property; the quoting can be applied to “work”, without specification of its nature. If the defendant quoted lawfully, there is no legal reason for compensation for copyright infringement (illegal reproduction and making the work available). The court of first instance did not violate the substantive and procedural law.