Where can we use a canvas picture
Copyright pictures: This is how you can use photos in a legally secure manner
Photos everywhere: who do they belong to?
The German law is clear: The image rights belong to the person who produced the photo. It doesn't matter whether it's a vacation snapshot, a product photo for eBay or a post shared a million times on Instagram.
Definition: quick explanation of copyright for images
Copyright protects photographs of all kinds. In Section 2 of the Copyright Act (UrhG), photographic works are defined as intellectual creation. Therefore the author owns the sole Photo rights. This also includes the rights to use, reproduce and publish.If the copyright of images is violated, the creator can take legal action against the unlawful use.
Scope of image rights: How long does copyright protection last for images?
When it comes to the duration of protection, the law distinguishes between photographic works and photographs. The categorization plays a decisive role for the term of protection.
Photographic works: definition and term of protection
Photographic works are personal, spiritual creations. You are creative, individual and with a recognizable creative height. For photographic works, copyright guarantees one lifelong protection and a further 70 years for the legal successor.
The design height distinguishes a photograph from a photographic work. Specifically, this means the design elements of a photograph:
- Light and shadow
- Sharpness and Contrast
- Perspective and detail
- Using filters, effects, and other image editing methods
- Use of technology and development methods
- Retouching and corrections
- Montage or collage
- Mood and meaning
The definition of the design height is not clearly defined. Nevertheless, the law clearly underlines that creative work is necessary in order to obtain the full scope of protection.
Photographs: definition and duration of protection
In contrast to photographic works, photographs are not viewed as personal, intellectual creation and are recordings without any creative height. The photograph is often defined as a mere “photograph” of an object - without any creative intention. However, German copyright law also applies here: The photographer enjoys the right to the image for 50 years after its creation (according to § 72 UrhG).
Typical examples of photographs:
- Images from a surveillance camera
- Machine photos
- Overexposed, blurred, faulty images
- Satellite images
Whether the picture was taken by a professional or a hobby photographer is therefore not relevant for the existence of copyright on images. The right to the picture already arises at the moment of triggering, but at the latest when it is published.
Rights of use for images: The small print decides
If you want to use someone else's photos for yourself, you will immediately come across license or usage rights. Both terms often summarize the regulations for the use of commercial photos. This includes the following areas of use:
- Exploitation rights
- Distribution rights
- Reproduction Rights
- Performing rights
- Rights to make available to the public
The granting of rights of use is permitted to the creator according to § 31 UrhG. The rights can have a spatial, temporal or content-related restriction.
Fictitious example of explicit rights to use photographs
A photographer is hired to document a company party. After the celebration, the company is interested in licensing five photographs. Now the photographer, as the author, can contractually define which usage rights she will grant her customer.
In this example, she decides that the five photographs may only be used in a resolution of a maximum of 1500 pixels wide. The photographer also restricts publication: use is not permitted for digital media such as websites or e-papers, but restricted to print media. However, the circulation or expected range must not exceed 500,000. Finally, it defines a usage period: The license right is limited to 24 months, but can be extended by a further twelve months if necessary.
Buy license rights
License rights guarantee a compensation for using the image. When you buy an image, the license rights should be clearly defined. You should be clear about spongy formulations. Establish communication with the author independently.
If you want to use photos commercially for a website, a flyer, a logo or the like, you have to consult with the photographer. He or she has the sole right to design and restrict or revoke the rights of use.
In any case, the following applies: You are required to provide evidence. If you are accused of infringing image rights, you must prove that you have permission to use it - to the exact extent to which you have used the photographic work concerned. In case of doubt, the right is on the side of the author.
Images without copyright, royalty-free images and CC0 license
So-called license-free photos can be found in many places on the Internet. The word “license-free” is tricky, however, because it suggests that the author has completely assigned his rights. In many cases, German law still forces image users to label them. Again, always read the fine print in the license agreement. Is the license limited to private use? Are there limit values for which the photographer specifies usage restrictions? Remain skeptical and check carefully if this is actually one unconditional License acts. Images without copyright should include a disclaimer from the creator.
The non-profit organization has existed for around 15 years Creative Commons, which provides standard license agreements for artists. The idea behind the contracts is to create creative commons and free content and to grant predefined usage rights for every potential user. Works that are actually subject to copyright (or analogously under copyright law of the United States of America) are used by as many people as possible around the world.
There are many photographs, graphics and designs on the Internet that start with the abbreviation CC0 (Creative Commons Zero) Marked are. This means that you do not own any copyright under US law. The legal equivalent is that unconditional license right for the users. In German law, the unconditional right of use is a license analogy to Public domain in UK and US law. At the same time, the CC0 contains a Waiver on the property rights of the creator. The standard contract of Creative Commons you'll find here.
Marking and references for images
The so-called Copyright naming rights are independent of the medium in which the protected photo is used. The author determines how the authorship must be identified. Unless expressly agreed by contract, only the name of the photographer has to be given (according to § 13 UrhG).
The copyright symbol is common, but has no basis in German copyright or trademark law. The symbol applies only under US law. Many photographers use a watermark or a copyright symbol to prevent careless distribution on social media channels.
References to photo databases
Using photos from paid image databases such as Shutterstock or Fotolia is often an additional option Mention of the source database required.
The license agreement with Shutterstock includes, for example, that the copyright must be given in this format:
"Name of the artist / Shutterstock.com"
Copyright Infringement: Where Are the Boundaries?
The possibilities to save, copy and share a photo are almost endless. Where does copyright infringement begin? And from when are you liable as a user? The sad reality is: usually from the first click.
Copy & paste: the first step in theft of photos
You use the search engine's image search and find a suitable image in the search overview. With a right click or the screen shot function you can copy and save the image. At this point you have already violated the copyright because the photo has been reproduced. The same principle applies to scans and prints. If the copy is restricted to private use, there is still no legal violation.
Technical innovations expose illegal image users
If the saved image only ends up on your hard drive and is not used publicly, the author hardly has any possibility of tracking the use. However, as soon as you continue to use the photo on the Internet, the photo theft can be traced.
Technological advances also help creators: with the help of a reverse image search (Reverse Image Search) photographers can track the usage of their images. The reverse search allows users to easily track down and examine all uploads of the photo. In the absence of picture credits, the path to a copyright lawyer is usually the next step. The use of reverse image search is common practice with large photo agencies like Getty, but also with freelance photographers. This is the only way you can curb the unlawful use of your photos.
The Instagram photo app is also upgrading: According to several reports, Instagram is testing a function in spring 2018 that makes screenshots of stories visible to the owner. The secret photographer is supposed to receive a warning message informing him or her that the owner of the story will be informed of the screenshot. It is still unclear whether the function will be activated worldwide.
Find out more about copyrights on the Internet in the additional article on the firma.de blog.
Image editing and copyright
Many believe that whoever changes the picture can bypass the copyright protection for pictures. This assumption is fundamentally wrong. There are two types of image processing that are regulated by copyright law.
Small changes and redesigns
The so-called Soft rendering denotes a slight change in the photographic work. An example: The original image was processed with a black and white filter in image 1. In the second example, a section of the original was cut out and scaled. Example 3 shows the original after using several filters and rotating it by 90 degrees.
All three changes fall under Section 23 of the Copyright Protection Act: "Edits or other redesigns of the work may only be published or used with the consent of the author of the edited or redesigned work."
The Soft rendering does not change anything about the authorship and the applicable property rights of the images! Before posting a protected image, you must ask the author's permission. Small changes to the original image do not in any way mean that the authorship is transferred to you.
Inspiration for your own works
Suppose you take inspiration for a similar creation from an original. In this case, Section 24 of the Copyright Act applies: "An independent work that has been created with the free use of someone else's work may be published and exploited without the consent of the author of the work used."
Strong changes in the foreign image
If the original is changed in such a way that it is barely recognizable or there is possibly a creative effort of its own, there may be an independent copyright for the new work. In individual cases, it must be assessed whether a level of design has been reached behind which "the original work has faded." In this case, § 24 of the UrhG also applies.
There is a fine line between this regulation. There must be a clear distance to the original. There are many articles circulating on the Internet that show how works of art and photographs are brazenly copied by large corporations. If the distance to the original is too small, there is plagiarism and the author can in theory take legal action against the plagiarist. In practice, however, it often looks different: There is no clear definition of the design distance. In any case, the assessment is subjective. This fact offers many gray areas for impersonators.
Missing source for pictures
Suppose you find an image on your computer that you would like to use. Unfortunately the reference to the author has been lost or cannot be assigned. In this case you should get the picture invariably not use. There is a high probability that you are violating copyrights and risking warnings and claims for damages.
An exception applies to orphan works. An image is considered orphaned if the rights holder cannot be found or contacted even after extensive research. The search is often complicated or even in vain, especially for historical photographs, images from research expeditions or war photographs.
The user of the pictures must now decide for himself whether he or she will use the pictures despite possible copyright infringements or not.
Tip: Document your research efforts and mark the photo transparently with the information that the author cannot be found.
Infringements and Consequences: What are the penalties for copyright infringement?
Ignorance does not protect one from punishment. This principle also applies to the infringement of image rights. If the author finds out that his copyrights have been infringed, the way to a lawyer is often the first step. This draws up a reminder.
Warning, declaration of cease and desist and action for cease and desist
If you receive mail from a lawyer advising you of a copyright infringement, please clarify the following questions first:
- Who is the warning?
- Which images are these specifically?
- What is the alleged copyright infringement?
- What can you prove?
Also check whether the client is named in the letter. A lawyer himself may not warn you on his own initiative.
Attention: Unfortunately, many fake reminders are circulating, which are sent en masse by dubious law firms in the hope of getting private individuals to pay. In any case, contact a specialist lawyer before signing or paying anything!
As a rule, the author threatens further legal action if the accused does not sign a cease and desist declaration. A warning for copyright infringement usually contains:
- Request to refrain from using the photographs concerned
- Threat of a contractual penalty in the event of non-compliance
- Invoice for the warning costs
Claims for damages and other claims
If you have violated copyrights and cannot prove the creator's permission, the usual consequence is a claim for damages. Whether the compensation is already mentioned in the first reminder depends on many factors. The more extensive the copyright infringement, the more likely an early payment claim is.
The lawyer calculates the amount and usually uses comparable cases as an example. The type of copyright infringement plays a decisive role:
- For what purposes was the picture used?
- How often has the picture been used, reproduced or published?
- What is the reach of the publication?
The compensation is intended to compensate for the loss and is always determined individually. The sum must, however, be comparable and comprehensible: Exorbitant claims for damages can usually not be enforced.
Suppose an illegally used image makes it into a company report sent to 2,000 recipients - including customers, employees, and investors. The author has now too Right to destruction the entire edition. Apart from the costs, such an action can be extremely damaging to your reputation.
If someone else's images are used for commercial purposes that involve the sale of goods, things get even more uncomfortable. Imagine the following scenario: You print a cute baby photo from the web onto the packaging of the goods that you sell online. If the illegal use is noticed, the artist has a very good chance of getting it Recall and surrender of the goods to assert.
Conclusion: copyrights for images
The copyright law is far-reaching and the user of third-party images always has the burden of proof in case of doubt.
The golden rules for dealing with images that you did not make yourself:
- Never use photographs on the Internet or for commercial purposes whose authors you do not know or have identified by name.
- Obtain usage rights for images that were produced by employees and used by your company.
- Identify the author of a picture clearly and visibly.
- Read the scope of the usage rights very carefully and only use photos to the extent permitted.
- If you save purchased images, document the author in the same place and note any restrictions and deadlines of the license rights.
- Do not publish edited images without consulting the rights holder.
The information published on our site is all written and checked by experts with the greatest care. However, we cannot guarantee the correctness, as laws and regulations are subject to constant change. Therefore, always consult a technical expert in a specific case - we will be happy to put you in touch.
firma.de assumes no liability for damage caused by errors in the texts.
Image: Iris Adler
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