Copyright on photographs: In its judgment of 3 November 2021, the Commercial Court of Ghent dismissed the claims of ‘Permission Machine’ against Kortom VZW. Permission Machine had filed a claim “as in summary proceedings” based on alleged copyright infringements on three photos. Below we discuss the facts, the reasoning and the outcome of this copyright case.

 

Facts

 

In its newsletters of September 2021, May 2017 and June 2016, Kortom VZW used three pictures of Belga News Agency. Permission Machine’s software detected this use and in 2019 Permission Machine drew up a licence note for its client Belga News Agency, in which it claimed an amount of 848 euros for the use of three photos and gave Kortom VZW “the chance to purchase a legal licence“.

 

After sending several payment reminders, Permission Machine appointed a bailiff to establish the infringements. Eventually, Permission Machine summoned Kortom VZW in a cease-and-desist procedure “as in summary proceedings” to have the photos removed, with a penalty of 250 euros per day.

 

Decision: abuse in the exercise of copyright

 

The Belgian court ruled that Permission Machine’s claim was unfounded and that it was exercising its powers “abusively“, because it concerned an “alleged” presence of only a few photos on a website of a non-profit organisation with a limited target audience.

 

The court condemns Permission Machine’s modus operandi. It states that Permission Machine is a “copyright troll” that only engages in collecting and enforcing fees from alleged infringers, and that it does not actually exploit the copyrights. The court stated that Permission Machine’s activities are “aimed at generating income from identified copyright infringements under pressure, not at stopping them.” The court added: “The managing entity obtains its income from licenses that it enforces according to the infringements found and does not actively exploit the copyrights. The plaintiff has a commercial interest in maintaining the infringements, whereas its general mission is precisely to combat them so that the rightsholder can be sure of a conclusive monitoring system that aims first and foremost to avoid infringements.”

 

The court accuses Permission Machine that it has as its primary objective to capitalise on infringements and that it does not consider the actual cessation of infringements as a priority.

 

The court rules that Permission Machine abuses its powers because:

 

• Permission Machine does not verify the criteria for copyright protection, but automatically assumes that the pictures are protected. Permission Machine did not provide sufficient arguments as to why the photos were “original”. Also, Permission Machine did not submit sufficient evidence that the copyrights to the photos had been transferred to it (the statement by Belga News Agency did not refer to the actual photos and was too general according to the court).

 

• Permission Machine does not provide evidence of the compensation claimed, and the amount of the compensation is determined arbitrarily. The court notes that the fee is “not in line with any indicative rates“. The court also criticises that “ unproven costs” are being charged.

 

• Permission Machine waited more than a year after its last notice of default to bring a cease-and-desist action, without first requesting the removal of the photographs and without checking whether the location of the photographs still posed a real threat to the author-photographer.

 

The court concludes that Permission Machine cannot claim a cessation of the infringements before the court when previously it had not (sufficiently) insisted on the removal of the photos (Permission Machine had demanded payment of a unilaterally imposed fee, not the cessation of the infringements). The court also reproached in particular that the court procedure had not sufficiently been announced to Kortom VZW. The court emphasised that the claim related to the “alleged” presence of a few photos on the website of a non-profit organisation with a limited audience, making the cease and desist action disproportionate to the infringement.

 

Conclusion regarding copyright and pictures

 

General principle is: you need permission

 

The general principle is that photographs are protected by copyright. The threshold of “originality” is quite low. This judgment does not affect this general principle. Therefore, before using a photo, you must have the permission of the photographer (or the photo agency) and possibly pay a licence fee. There are several exceptions to this principle (such as the exception for “reporting on current affairs”) which will not be discussed here.

 

In this judgment, the court did not address the question of whether the pictures were protected by copyright (which is peculiar, to say the least).

 

There is no such thing as automatic copyright protection

 

The court emphasises in this judgment that copyright protection does not apply “automatically”. Personally, it seems right to us that the court insists on a concrete argumentation and evidence of the reasons why a specific photo is original and therefore protected by copyright. Even though the threshold of originality is quite low, the burden of proof to demonstrate that a photograph is original lies with the person claiming copyright protection. All too often, copyright claims are made for photographs that are not sufficiently original, and it is good that a court emphasises that copyright protection must be proven and does not apply in an automatic way.

 

Cease-and-desist of copyright infringement

 

The court was particularly concerned that the copyright holders (via Permission Machine) had not sufficiently insisted on the removal of the photos before filing a cease-and-desist claim. The court did not find it logical to file a cease-and-desist claim (with the purpose of removing the photos), where Permission Machine had initially mainly insisted on the payment of compensation (and thus not the removal of the photos).

 

This is indeed something to consider, but should not be an obstacle to effectively stopping an actual infringement.

 

In this case, it was unclear whether the photos were still on the website or not. In short, Kortom VZW claimed that the photos had already been removed, but according to a report by the bailiff, the photos were still on their website. We suppose that the photos were probably on the website but archived. Hence the court’s remark that it must be verified whether the publication of the photos still poses an actual threat to the author-photographer.

 

“Copyright troll”

 

The court accused Permission Machine of being a “copyright troll” that is only interested in collecting fees. This seems a bit reductive to us. Permission Machine had filed a cease-and-desist claim, not a claim for compensation. The fact that Permission Machine offers the possibility of still acquiring a licence does not in itself seem a problem to us. Also, the claimed compensation (265 euros per picture and administration costs of 53 euros) does at first view not seem excessive (as lawyers, we often see much higher compensation claims from clients; of course, this always depends on the specifics factual circumstances of the case). The argument that Permission Machine does not use “indicative rates” is also peculiar, because in other case law it is precisely the use of standard rates such as those of Sofam or Sabam that is criticized by judges.

 

We believe that in a cease-and-desist action, the court should not have ruled on the aspect of damages, but only on the cessation of possible infringements. In general, we also think that the use of “moral metaphors” such as “copyright troll” (or “piracy“, “theft“, etc.) does not stimulate a serene legal debate.

 

2 fundamental problems with copyright and pictures

 

It seems to us that there are two fundamental problems with copyright claims on pictures: (1) these cases often involve “banal” photographs with no arguments why the photographs are protected by copyright (i.e., why the photographs are “original”); and (2) the damages sought are often disproportionately high.

 

In connection with the first problem: the court accused Permission Machine of considering copyright protection to be an “automatic”, but the court itself did not address in its judgment whether the photos are original or not. This is a missed opportunity.

 

In connection with the second problem: the judge reproached Permission Machine for unilaterally imposing tariffs but did not further elaborate on this (Permission Machine did not claim a compensation in these proceedings, only a cessation of the infringements). Determining the “value” of a photo for an infringing use is indeed a difficult exercise. Tariffs such as those of Sofam or Sabam can play a role, but the main question is what kind of remuneration the “author” would have received in case permission had been asked. This is, especially for individual photographers, a tough problem. Photographers often find themselves in a difficult situation, since they did not receive compensation prior to the online use of their photos, they have to pay costs to stop the infringements, and it is difficult for them to assess the extent of the damage. It might well be that some infringing parties did not intend to cause harm to the photographers or photo agencies, but other infringers are taking advantage of this situation by not paying a decent compensation for the use of photos. It is therefore understandable that photographers and photo agencies are looking for a structural solution and are engaging parties such as Permission Machine.

 

Do you have further questions about (copyright infringement)? Do not hesitate to contact us.

 

Authors: Bart Van Besien and Ilona Min