Photographer's copyright. When a photo becomes public domain

Article 1259 of the Civil Code of the Russian Federation provides that photographic works and works obtained by methods similar to photography are the object copyright. In this case, copyright arises by virtue of the very fact of creation of the work. The creation, exercise and protection of copyright does not require registration of a work or compliance with any other formalities.

So it’s worth sending a complaint to the owner of the domain resource where the site is located, indicating which objects, in your opinion, are posted in violation of copyright.

In accordance with Art. 1228 of the Civil Code of the Russian Federation exclusive right to the result intellectual activity, created creative work, originally appears from its author. This right can be transferred by the author to another person under an agreement, and can also be transferred to other persons on other grounds, established by law. According to Art. 1286 Civil Code of the Russian Federation property rights works can only be transferred under a license agreement (except for cases provided for Civil Code RF). Any use of an object of copyright, including photographs, is possible only if there is an agreement with the copyright holder (the author of the photographic work, his heir), which must be concluded in writing.

Thus, in order to use a photographic work in publication, it is necessary to obtain the prior consent of the author of this photograph, which can be reflected by concluding a license or other agreement on the transfer of exclusive rights to the media publisher.

Moreover, as provided for in paragraph 1 of Art. 1251 of the Civil Code of the Russian Federation in case of violation of personal moral rights of the author, their protection is carried out, in particular, by recognizing the right, restoring the situation that existed before the violation of the right, suppressing actions that violate the right or create a threat of its violation, compensation moral damage, publication of a court decision on a violation.
In case of violation exclusive right or other violation of copyright, the author of the work has the right to demand from the violator payment of compensation in the amount of ten thousand rubles to five million rubles, determined at the discretion of the court, or twice the cost of the right to use the work, determined on the basis of the price that, under comparable circumstances, is usually charged for fair use works.
Moreover, the copyright holder has the right to demand payment of compensation for each case of unlawful use of the result of intellectual activity.
Wherein joint resolution Plenum Supreme Court RF No. 5 and the Plenum of the Supreme Arbitration Court of the Russian Federation No. 29 dated March 26, 2009 “On some issues that arose in connection with the entry into force of part four of the Civil Code of the Russian Federation” explained the following: when considering cases of recovery of compensation in the amount of ten thousand to five million rubles, the court determines the amount of compensation within the limits specified by law at its discretion, but not higher than the claim made by the plaintiff. However, the court did not deprived of rights recover an amount of compensation in a smaller amount compared to the stated claim, but not below the lower limit.
The amount of compensation to be recovered must be justified by the court. When determining the amount of compensation, the court, taking into account, in particular, the nature of the violation committed, the period of illegal use of the result of intellectual activity, the degree of guilt of the violator, the presence of previous committed by a person violations of the exclusive right of a given copyright holder, the probable losses of the copyright holder, makes a decision based on the principles of reasonableness and fairness, as well as the proportionality of compensation for the consequences of the violation.
If the copyright holder makes a demand for payment of compensation in the amount of twice the value of the right to use the work, object related rights or a trademark, determined on the basis of the price that, under comparable circumstances, is usually charged for their lawful use, then when determining the amount of compensation, the basis should be the remuneration stipulated by the license agreement providing for a simple (non-exclusive) license at the time of the violation.
It is also worth noting that in accordance with the Law of the Russian Federation “On Funds mass media» art. 42 establishes the obligation of the editors to respect the rights to the works used, including copyright. In addition to this, s. 46 said law, provides for the possibility of prompt response by citizens in relation to whom information has been disseminated in the media that does not correspond to reality or infringes on the rights and legitimate interests. Those mentioned in the article that infringe on the rights and legitimate interests of a citizen include the rights to authorship and rights to a name.
The citizen has the right to respond in the same media. The answer can be called differently (comment, remark, etc.). However, the essence of this publication should be aimed at eliminating the infringement legal rights citizen for authorship.
As for the main recommendation when the author publishes his photographs, in particular on the Internet, the following should be noted. It is mandatory that in photographs posted on the Internet, and, if possible, in all other photographs of themselves and in any other methods of use (including when printing photographs in magazines), the author must place information about the author on the photograph itself. Accepted format: © Name-Surname of the Author, Year of first publication (for example, © Ivan Petrov, 2008). This circumstance may subsequently play a role key role when proving copyright of a photograph.

So you have every reason to apply everything legal measures to protect copyrights and bring those responsible to justice legal liability, including through recovery of damages in financial form.

What should an illustrator know about his rights?

Yanina Yeger: An illustration is an object of copyright, a result of intellectual activity, a work of fine art, regardless of its dignity, purpose and method of expression. After creating an illustration, the author has a number of rights: the right of authorship (personal inalienable right, which cannot be sold and which cannot be renounced) and exclusive proprietary copyrights that can be disposed of (transferred by alienation or licensed).

The work may be reproduced without the consent of the author or copyright holder and without payment of remuneration. visual arts, which is constantly located in a place open to the public (these are streets, museums, as well as all freely accessible Internet resources). But the image should not be used in commercial purposes and be an end in itself (the main object of reproduction). And the last is an evaluative question depending on the circumstances. For example, it is not a violation to use illustrations for non-commercial purposes as a background to cover an event or to depict other objects. That is, when the illustration itself does not carry an independent semantic load for reproduction and is not its purpose.

What is the difference between exceptional and non-exclusive rights?

Yanina Yeger: Exclusive rights allow you to use the work and dispose of it in any way contrary to law way. The validity period of the exclusive right is established by law, and, according to general rule, expires 70 years after the death of the author. After this the work becomes public domain, it can be used freely without anyone's consent, permission and without paying royalties. At the same time, authorship, the name of the author and the inviolability of the work are protected.

A non-exclusive right is the right of one or more persons to use a work (reproduce, distribute, publicly display, process, etc.), within the time limits specified in license agreement. This period cannot be longer than the validity period of the exclusive right. If the license agreement prohibits the owner of the exclusive right from transferring the right to use the work to anyone else, then such a license is called exclusive.

The practical difference between exclusive and non-exclusive rights almost disappears when the contract transfers without restrictions the entire scope of rights to use the work, including allowing the user to enter into sublicensing agreements (that is, transfer the rights to someone else). It remains only in the possibility of the user losing the acquired rights (when the contract is terminated due to violation of the terms). Also licensing rights are not inherited.

If a work is specifically created for inclusion in a complex object in which there are many protected results of intellectual activity (a film, a show, a multimedia product), then the license agreement may establish certain period and the territory of use of the work, but all other limiting conditions will be invalid. For example, the author of theatrical scenery cannot limit public display or prohibit video recording of a performance, and the author of illustrations used in advertising videos cannot determine the frequency of their broadcasts.

Yanina Yeger: This means the transfer of the exclusive right (that is, the full scope of rights to the work) by written agreement to another person. In this case, the author is deprived of the opportunity to use the work independently. The right of authorship and the right to name are inalienable and non-transferable.

Anna Brilliantova: Under an employment contract individual(illustrator) is on staff, and the works created by him are official. Exclusive right to official work belongs to the employer, unless the agreement between the employer and the author provides for other conditions. Labor Relations generally regulated Labor Code RF.

Under contract author's order an individual creates a work, and the customer receives certain rights - exclusive rights or the right to use this work within any limits established in the contract. Relations under the author's order agreement are regulated by the Civil Code of the Russian Federation.

Anna Brilliantova: Rights in this situation are considered not transferred (there was no agreement). The transfer of rights must be formalized in writing (unless we are talking about granting the right to use the work in a periodic printed edition- it is possible there oral agreement). Therefore, formally, the author can dispose of the illustration as he sees fit.

Is it possible to sell illustrations commissioned by a specific client to someone else?

Yanina Yeger: It depends on the terms of the contract. The customer may be granted the right to use the work on certain conditions, or the exclusive right may be sold. In the latter case, “selling the illustrations to someone else” is not possible.

If the original work is transferred by the author to the customer without a clause on alienation of the exclusive right, the customer has the right, without the consent of the author and without paying him remuneration, to display the purchased original, reproduce it in exhibition catalogs and in publications dedicated to his collection, and also transfer the original of this work for display on others exhibitions.

The work was done on a real medium (canvas, oil), the right to the image for advertising was sold. Does the author have the right to sell the original?

Anna Brilliantova: Yes, it has.

If an artist made illustrations for a book and received a fee, does he have any further right on a percentage of its reissues?

Yanina Yeger: The artist’s right to royalties when reprinting a book is determined by the terms of the agreement on the transfer of rights to illustrations.

Does the customer have the right to prohibit the illustrator from publishing a picture in the portfolio?

Anna Brilliantova: The illustrator has the right to be recognized as the author of the work and the author’s right to Name. Accordingly, he cannot be prohibited from mentioning the work and the very fact of authorship. Reproduction of a “lawfully published work” is also permitted without the consent of the copyright holder - if necessary and exclusively for personal purposes. That is, the customer-rights holder can try to agree with the author not to publish the picture, but the author can violate this agreement without consequences for himself if he does not use the portfolio for commercial purposes (that is, sell it as an independent work).

Anna Brilliantova: The answer to the question depends on what is specified in the contract with the author. The author in such a situation can contact the customer or client (depending on how the relationship between the customer and the client is formalized) and demand (depending on the provisions of the contract, if there was one) compensation for copyright infringement or payment of a fine for late payment.

Does correspondence with the customer have legal force?

Anna Brilliantova: Have legal force official letters: signed authorized person, with the company seal. Correspondence by e-mail taken into account in court, but legal force does not, that is, will not influence the decision.

Can registered characters and logos be used in illustrations?

Anna Brilliantova: Own trademarks may be used in your own illustrations. Trademarks other copyright holders can be used in illustrations if permission from the copyright holder is obtained.

Is parodying a work a violation of someone's rights?

Yanina Yeger: A parody in itself does not violate copyright and can be created and published without the consent of the original author or copyright holder and without paying him any remuneration. But it is important not to cross the not always clear line between a parody and an unacceptable by law distortion or distortion of a work that discredits honor, dignity or business reputation author (this gives the author the right to demand protection).

Does an illustrator who makes collages from other people's photographs, illustrations, paintings - modern and old - violate someone's copyright? Is it acceptable to use someone else’s or “nobody’s” photograph as source material for a drawn image? Is it possible to add a mustache to someone else’s portrait and pass it off as a collage?

Yanina Yeger: Depending on the circumstances, using someone else's work may be considered reworking, copying, distortion, or exploitation of an idea. Processing and copying, creating a collage (a new work from the works of other authors) without the permission of the owners of the exclusive right within the period of their validity is a violation of the law.

Many illustrators make collages from elements of magazine photographs. If these pieces within the collage are difficult to identify as part of the work used, then the illustrator is not violating anyone's rights. Usually the fragments are insignificant and are used as artistic material - color, graphic elements, texture. But, for example, the famous image of hands on the fresco “The Creation of Adam” in the Sistine Chapel could not be used in a collage without the consent of the copyright holder, if the exclusive right had not already expired.

If the idea of ​​a photograph is used for the drawing - colors, arrangement of objects, angle, then there is no violation. A mustache added to someone else's portrait may be regarded as a distortion or violation of the right to the image, and may be a work created with the consent of the copyright holder.

Who owns the rights to characters from films and cartoons? Can they be used in illustrations?

Anna Brilliantova: Exclusive property rights belong to the authors or copyright holders (studios or other companies). Characters or images of characters can be registered as a trademark or utility model (most often this applies to foreign producers of animation or films). The use of such heroes occurs as a general rule - on the basis of an agreement or permission from the copyright holder.

Is it possible to draw celebrities? Who should I ask permission to depict Marilyn Monroe and Michael Jackson?

Anna Brilliantova: Theoretically, you can draw anyone. The question is - for what purpose? In Russia to similar situations Art. applies 152.1. Civil Code of the Russian Federation - “Protection of a citizen’s image.” The right to image and the right to inviolability of personal appearance are protected by law. A person decides for himself how to dispose of his face and body—who should look at him, who should photograph or draw him.

Russian legislation does not directly prohibit drawing celebrities unless moral or other harm is caused to them. But images (photos, videos and works of fine art) can only be made public and used with the consent of the person depicted. And after death - with the consent of the children, surviving spouse or parents.

In some cases, consent is not required. First, if the image “is used in government, public or other public interest" Secondly, when the image “was obtained while filming at public events and other public places.” Consent for the image is not required if the person posed for an artist or photographer for a fee.

There is no single registry or list from which you can obtain information about permission for someone’s image. WITH similar questions It’s worth contacting the official websites of the stars.

How can you protect yourself from picture theft in advance?

Yanina Yeger: It is impossible to completely protect yourself from theft of pictures. But the author should think about a few things in advance. moments: evidence of your authorship of the work, execution of agreements on the transfer of rights to illustrations (and correct understanding legal consequences of contracts) and correct transmission of illustrations. He should also take care of notification of copyright and exclusive rights.

Authorship can be proven different ways- for example, publication of illustrations in printed publications, notarized storage of a copy of a work, notarized registration of its publication on the Internet.

It is advisable to submit illustrations in writing. Moreover, in such a way that in the event of a dispute about the rights of the pictures, they can be identified (for example, prints of illustrations can be indicated in transfer acts). To notify of authorship, you can use on each copy a copyright symbol, the name or title of the copyright holder, and the year of first publication of the work. Or warn about rights and restrictions in other ways.

What should you do if your work is stolen and used without the author’s permission?

Yanina Yeger: It is necessary to collect evidence of illegal use (photos, notarized screenshots of sites, acts of illegal use etc.). After this, you need to identify the person illegally using the work and contact him with a written claim demanding termination of use (and, possibly, payment of remuneration, compensation for losses caused).

If an agreement cannot be reached, it is up to the court. It is necessary to demand the cessation of use of the work, protection of the honor and dignity of the author, and compensation for moral damage. The copyright holder may demand compensation for damages or payment of a single compensation for violation of an exclusive right. This is double the cost of copies of the work or the right to use the work. The value is determined by reference to the price that would normally be charged for fair use under comparable circumstances. Instead, the copyright holder may also demand fixed compensation (from ten thousand to five million rubles), the amount of which is determined by the court.

Yanina Yeger: There are few known cases of illustrator copyright infringement litigation. The average amount of compensation for one-time use of an illustration (or photographs) is about 10,000 rubles.

According to the claim of the artist U. against the Eksmo publishing house in 2010, a large sum compensation for the publication of a series of graphic works in Eksmo publications. One drawing was made by the artist in 1999 for the magazine “Crocodile” without permission for further use.

There are many violations, but legal disputes are rare. This is explained by the frightening complexity and length of judicial procedures, problems of proving the circumstances of violation of rights, and low amounts of compensation. But with the right and patient approach, pre-trial settlement and judicial protection Illustrator rights can be very effective.

To bookmarks

Photo editor of the BigPicture.ru resource Nikita Evdokimov wrote a column for the CPU about how an online publication can avoid problems with copyright infringement in photographs.

It seems to me that the world is making great strides in the fight for copyright compliance. Once the major rights holders realized that digital pirated content could not be stopped or curbed by any means, and focused on making legal content quick and easy to consume, the world changed.

I didn’t notice how much I myself had changed. When it became easier to pay instead of steal, I stopped. I pay for books, for music, for movies. The prices are reasonable, it’s nice and easy for me to part with money, I know for sure that some of it will reach the authors.

Unfortunately, this whole joyful story does not concern photographs at all. Friends, the theft of photographs is a complete mess. It is total. I don’t know of almost a single popular resource where I wouldn’t find images that violate copyright within a couple of minutes. The only difference is those rare resources that have a professional photo editor on staff.

In fact, you cannot take a photo, put a link to the place where you took it, and publish it (outrageous disgust when photos are not captioned at all). Why not? Because all images are protected by copyright law. And if you do not coordinate the publication with the copyright holder of the image, you are breaking the law.

Let's do a simple experiment. Let's go to home page CPU, take any photo and do a reverse search on Google (I quite honestly clicked on the first picture I came across). This is the drama in three parts:

And what turns out to be? It turns out that the photo belongs to the agency Global Look Press. And yes, they can go to court. And they will win. And they will be right. Copyright, damn it, rights. They arise at the moment of creating a photograph or image. And they disappear only 70 years after the death of the author.

Therefore, the author of the photograph may rightly be indignant when he discovers that his picture is being used without his knowledge (and without remuneration either). Of course, only a few make it to court. Usually it all comes down to a request to remove the photo (or photos) from the site.

Sometimes, if the author persistently negotiates, he uses correct wording(authors, remember: “I have already taken a notarized screenshot”, “I have contacted a lawyer”) - the case ends with the payment of compensation. The size depends on the impudence or efficiency of the author and the greed or pliability of the site. You can recall the lawsuit of blogger Ilya Varlamov and others against “Arguments and Facts” - it all ended with compensation of 20,000 rubles in favor of the authors for each incorrectly used photo.

And it seems to me that this is not happening because all these downright bad radishes are all around, just thinking about how and where to steal something. But they simply don’t understand that every photograph has a copyright holder who controls its fate. And out of ignorance, you can run into an author who is truly concerned about the fate of his photographs.

What should I do? Firstly, take it for granted that you can’t illustrate the site with just anything. And secondly, I've outlined the top five ways to get legal images. Just follow these instructions and everything will be fine.

1. Public domain

Typically, photographs enter the public domain 70 years after the author's death. This is a worldwide practice, but sometimes nuances arise. For example, it happens that an image is in the public domain in our country, but not in the US. If you are not sure that the image is in the public domain, you need to check it further to protect yourself.

Public domain images can be used in any way you wish. I recommend that you read the corresponding article on Wikipedia. It's also helpful to look into where you can find photographs and images that are in the public domain.

2. Creative Commons License

Many people have probably heard something about Creative Commons. This is such a special license (not even one, there are six of them different types), which by default always allow the work to be distributed with a single prerequisite- indication of authorship.

However, there is a nuance called “ commercial use" Some types of licenses allow it, others prohibit it. Is, for example, publication in the media a use “the purpose of which is to obtain commercial gain or personal remuneration in in cash"? I don't know, so I always look for pictures that allow commercial use, just in case.

You can read more about the types of Creative Commons licenses on the official website. There is also a search there. Even Google can recognize works by Creative licenses Commons and regularly improves the algorithm (in image search tools you need to pay attention to the “use rights” item). I’m really looking forward to Yandex learning to search using legal images.

3. Use embeds

You cannot take a picture from Instagram - it is a violation of copyright. But it is possible to embed. The same with Twitter, Tumbler, Flickr (not all authors, however, include embeds, but still). And most importantly - Getty Images

To bookmarks

Photo editor of the BigPicture.ru resource Nikita Evdokimov wrote a column for the CPU about how an online publication can avoid problems with copyright infringement in photographs.

It seems to me that the world is making great strides in the fight for copyright compliance. Once the major rights holders realized that digital pirated content could not be stopped or curbed by any means, and focused on making legal content quick and easy to consume, the world changed.

I didn’t notice how much I myself had changed. When it became easier to pay instead of steal, I stopped. I pay for books, for music, for movies. The prices are reasonable, it’s nice and easy for me to part with money, I know for sure that some of it will reach the authors.

Unfortunately, this whole joyful story does not concern photographs at all. Friends, the theft of photographs is a complete mess. It is total. I don’t know of almost a single popular resource where I wouldn’t find images that violate copyright within a couple of minutes. The only difference is those rare resources that have a professional photo editor on staff.

In fact, you cannot take a photo, put a link to the place where you took it, and publish it (outrageous disgust when photos are not captioned at all). Why not? Because all images are protected by copyright law. And if you do not coordinate the publication with the copyright holder of the image, you are breaking the law.

Let's do a simple experiment. We go to the main page of the CPU, take any photo and conduct a reverse search on Google (I quite honestly clicked on the first picture that came up). This is the drama in three parts:

And what turns out to be? It turns out that the photo belongs to the agency Global Look Press. And yes, they can go to court. And they will win. And they will be right. Copyright, damn it, rights. They arise at the moment of creating a photograph or image. And they disappear only 70 years after the death of the author.

Therefore, the author of the photograph may rightly be indignant when he discovers that his picture is being used without his knowledge (and without remuneration either). Of course, only a few make it to court. Usually it all comes down to a request to remove the photo (or photos) from the site.

Sometimes, if the author persistently negotiates and uses the correct wording (authors, remember: “I have already taken a notarized screenshot”, “contacted a lawyer”) - the case ends with the payment of compensation. The size depends on the impudence or efficiency of the author and the greed or pliability of the site. You can recall the lawsuit of blogger Ilya Varlamov and others against “Arguments and Facts” - it all ended with compensation of 20,000 rubles in favor of the authors for each incorrectly used photo.

And it seems to me that this is not happening because all these downright bad radishes are all around, just thinking about how and where to steal something. But they simply don’t understand that every photograph has a copyright holder who controls its fate. And out of ignorance, you can run into an author who is truly concerned about the fate of his photographs.

What should I do? Firstly, take it for granted that you can’t illustrate the site with just anything. And secondly, I've outlined the top five ways to get legal images. Just follow these instructions and everything will be fine.

1. Public domain

Typically, photographs enter the public domain 70 years after the author's death. This is a worldwide practice, but sometimes nuances arise. For example, it happens that an image is in the public domain in our country, but not in the US. If you are not sure that the image is in the public domain, you need to check it further to protect yourself.

Public domain images can be used in any way you wish. I recommend that you read the corresponding article on Wikipedia. It's also helpful to look into where you can find photographs and images that are in the public domain.

2. Creative Commons License

Many people have probably heard something about Creative Commons. This is such a special license (not even one, there are six different types), which by default always allow the distribution of a work with the only mandatory condition - attribution.

However, there is a nuance called “commercial use”. Some types of licenses allow it, others prohibit it. Is, for example, publishing in the media a use “the purpose of which is to obtain commercial gain or personal remuneration in the form of money”? I don't know, so I always look for pictures that allow commercial use, just in case.

You can read more about the types of Creative Commons licenses on the official website. There is also a search there. Even Google knows how to recognize works under Creative Commons licenses and regularly improves the algorithm (in image search tools you need to pay attention to the “use rights” item). I’m really looking forward to Yandex learning to search using legal images.

3. Use embeds

You cannot take a picture from Instagram - it is a violation of copyright. But it is possible to embed. The same with Twitter, Tumbler, Flickr (not all authors, however, include embeds, but still). And most importantly - Getty Images