January 2018. Perhaps you’ve already received it? A threatening letter from Getty Images or Masterfiles demanding a couple of thousand euros on the grounds that a photo on your website infringes one of their clients’ copyright.
Wrong in principle
As a rule you should take such communications seriously, of course. After all, if you’re using a photo without permission then you are wrong in principle. The words in principle are important here, though, since not every photo is protected by copyright, as shown by a district court ruling last year.
Taken off the internet
The case involved a company based, which had included a photograph – presumably taken off the internet – of a temperature gauge in a car on its website. When it refused to bow to Masterfile’s demand for 3,200 euros, the latter instigated legal proceedings. Unsuccessfully, as it turned out.
If a photo is to be adequately copyright-protected, it needs to carry the ‘maker’s mark’ among other things. Put simply, this means it must be the result of specific creative choices made by the photographer. The court ruled that this doesn’t apply to a close-up of a temperature gauge. Such a photo requires nothing more than the right lighting and focus adjustment. Verdict: no copyright infringement and hence no compensation payment to Masterfile.
So if a letter from Getty or Masterfile lands on your doormat, you should give it serious attention but at the same time make sure that what you’ve used isn’t just a simple example of a product photo. You could save yourself 3,000 euros.
A court in The Hague issued a similar ruling in 2015 when it stated that a company cannot claim copyright for a simple product photo. This resulted in photographs of the Grays hockeystick being refused protection.