Online Images, Copyrights and Wrongs

There have been a number of cases concerned with the issue of copyright and the publication of online images of late.

Organisations such as Getty’s Images will vigorously pursue clients if they suspect any infringement of their or their copyright holders’ rights, often by the highly questionable practice of sending demand letters for substantial damages and threatened enforcement by debt collection agents. Recent case law could now result in an increase of the number of claims by copyright holders for online infringement, and the jurisdictions in which such actions are brought.

This is because the European Court of Justice (ECJ) has given a preliminary ruling on question of jurisdiction referred to it in an Austrian case. The case concerned was, Pez Hejduk v EnergieAgentur. NRW GmbH, and involved the unauthorised publication of images by a German website, the copyright of which belonged to an Austrian photographer. The ECJ’s preliminary ruling indicated that the mere fact the image was accessible in Austria was sufficient to allow the Austria Court jurisdiction to hear the claim. However, it could only rule on damage caused in Austria.

This decision is consistent with earlier authority. The obvious potential headache for UK based travel companies is that they will frequently use images taken in other jurisdictions and that the copyright for such images may belong to photographers in those jurisdictions for whom it is far easier to bring a claim in their local court rather than the UK.

This decision only applies to cases involving infringement within the EU but the advice for travel companies will always remain the same, which is that it is essential that a licence to use the image or the copyright holders express permission is obtained prior to publication of the images. Without such authorisation there is likely a copyright infringement and claims could be made regardless of whether or not the publication is temporary.

It can sometimes be the case that such images are provided by your website designers but as it will ultimately be the UK travel company publishing the images it is they who will be in the immediate firing line. Therefore, enquiries should be made of the website designers and if necessary appropriate warranties and indemnities sought in your agreements with them.

If you are faced with a claim by a copyright holder or an organisation such as Getty’s Images, it would be sensible to take advice immediately. Even if a successful defence is unlikely it is often the case that the amounts sought in damages are far higher than would likely be awarded by a Court and the sums sought should therefore be resisted.

Please contact Claire on Claire.Ingleby@mb-law.co.uk for further advice.

Please note this information is for general guidance only and is not intended to be a substitute for specific legal advice.