Media issues due to unintentional copyright infringement: Whose photograph is this?

In recent years, there has been an increase in lawsuits filed against news organizations by photographers for unauthorized use of their photographs, and the compensation that media outlets pay to the injured parties, along with legal costs, can reach several thousand euros per photograph.

At first glance, everything is clear: copyright must be respected, and those who violate the law are obliged to face consequences. However, journalistic practice reveals numerous instances where media outlets pay compensation for copyright infringement by photographers even though they did not intentionally violate the law; rather, they failed to thoroughly verify who owns the rights to the photograph they published.

Biljana Stepanović, editor-in-chief of the magazine "Nova ekonomija," cites an example where they were sued after publishing the cover of a book about former Serbian Prime Minister Zoran Đinđić in an article promoting the release, as it turned out that only the publisher had the right to use that photograph, of which the journalists were not informed.

Stepanović emphasizes to B&F that she is unequivocally against the infringement of anyone's copyright and acknowledges that they were rightly sued when they published a photograph of Dušan Bajatović in a report about a conference, as that photograph could only be used by the conference organizer, who had commissioned and paid for it in advance. "But I was surprised by the amount of costs that were later reduced to 460,000 dinars after the appeal to a higher court," Stepanović notes, questioning why the tariff of the Association of Visual Artists of Serbia is not applied in such cases.

"This way, when they know they will win more in court, they do not want to agree to a settlement," claims Stepanović. According to her, the reason fewer photographers agree to out-of-court settlements may also be the fact that judicial practice in such disputes has become uniform, and they mostly win, unlike media outlets, for whom combating the theft of their texts is more complicated. Consequently, "Nova ekonomija" has deleted all photographs from its archive, except for those taken by its employees.

Set design can also be a problem

The media company N1 aired a documentary produced externally, which featured a poster of the late Prime Minister Zoran Đinđić in its set design. "The lawsuit counted every appearance of the poster on screen, as well as in announcements on the website, resulting in a total of 165 unauthorized uses, for which more than 6.9 million dinars were demanded. The court did not accept that figure in its first-instance ruling, but a new procedure is underway following the appeal," says Jelena Petrović, executive editor of the N1 portal, which in just over 11 years of operation has faced 13 potential lawsuits, six of which were resolved through out-of-court settlements.

Petrović mentions an example where they received a warning prior to a lawsuit because they published a text and photograph promoting a concert by Konstrakta, which had been sent to them by a PR agency. Fortunately, the PR agency acknowledged the mistake and entered into negotiations with the photographer.

N1 was also sued when it published a regularly paid image from the Shutterstock platform because it did not credit the author, even though that was not explicitly stated as an obligation. The same happened with Wikipedia.

"That’s why we strive to use our illustrations as much as possible, and if we must publish a photograph sent to us, we always ask the sender for permission to use it," emphasizes Petrović.

Danijela Nišavić, owner of the portal "Plodna zemlja," tells B&F that in her three decades of work in journalism, she has never been accused of unauthorized use of someone else's content, "until recently, when I received a warning prior to a lawsuit because I published a photograph of my biological sister along with a text she wrote for my site." The disputed photograph was provided to her by her sister. The photograph was taken five years ago when the hospital where she works hired a photographer to take pictures of its work collective.

Nišavić settled out of court with the author of the image for 24,000 dinars. "So, the photographer earned additional income from a photograph he was already paid for. That is, of course, not illegal, but it is neither humane nor moral," believes Nišavić.

The "Plodna zemlja" portal now primarily publishes its own photographs and, when needed, images from free stock websites, and when they receive them from PR agencies, they request additional information about the photographs. "All of this slows down the work on the portal, but I have no choice," concludes Nišavić.

Even marketing agencies make mistakes

Many other media outlets have found themselves in situations where they published a photograph sent to them by an institution, government agency, company, or PR agency, only for the photographer to sue them rather than the organization that disseminated the photograph to the public, even though it did not own it.

When asked why this is the case, lawyer Uroš Nedeljković, who specializes in intellectual property protection, tells B&F that under the Copyright and Related Rights Law, for “unauthorized communication” of the disputed photograph, the entity that published it is responsible, not the one who sent it, even if it is a legal entity.

It happens that PR and marketing agencies also make mistakes. "Although they should know copyright law well due to the nature of their work, media outlets often receive photographs whose use is regulated by contracts 'downloaded' from the internet or contracts made by unqualified individuals, and then they forward photographs to media outlets that they should not use," warns Nedeljković.

According to him, the only thing a news organization can do in such a situation is to seek reimbursement from the agency. "I have not had such a case so far, but such practice exists," he says.

This Belgrade lawyer advises journalists that every time they receive photographs from PR agencies or another legal entity, they should request a statement from the author of the photograph or their consent for the work to be used for a specific purpose. The same rule applies when a photograph is sent to journalists by an individual.

Caution is also needed when using stock websites or Wikipedia. "I had a client who was sued even though they published a photograph from Wikipedia under the stated conditions. It turned out that the image was uploaded by a user who did not own it," notes Nedeljković, warning that photographs should not be "cropped" or edited without permission, as this constitutes a violation of the integrity of the copyrighted work.

In his experience, out-of-court settlements and lawsuits for unauthorized use of photographs are equally represented, and their numbers have recently stagnated or even declined. This has been aided by education carried out by journalistic associations, as well as the fact that many media outlets have "burned" in court.

Source: Biznis i finansije