Using someone else's photos article. Law on filming in public places

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On 06/09/2015, a meeting of the Plenum of the Supreme Court of the Russian Federation was held, which considered some issues of application general provisions part one Civil Code Russian Federation, in particular, the problem of using personal photos posted by users social networks on personal pages.

Publication of the image of a citizen, including its placement by the citizen himself on the Internet, and the public availability of such an image does not give other persons the right to freely use such an image without obtaining consent.

Consent is required if the sole purpose of publishing and the use of the image of the face is to satisfy the philistine interest in his privacy or making a profit.

It must be understood that the mechanism for distributing publications on the Internet is carried out through intangible media and the image reproduction technology should be taken into account. To publish, for example, a photo from Vkontakte, on some sites, it is enough to copy the link to this image, while the image will be stored on the vk.com server, and not on the publication page.

Consent to the publication and use of the image of a citizen is a transaction that can be made in writing or oral.

In this regard, consent may contain a number of conditions that determine the procedure and limits of disclosure and use his images.

This moment greatly simplifies the mechanism for obtaining consent: sent a message with a request and received an “agree” in response. The deal is done.

If the consent was given orally or by implicit actions, such consent covers the use of the image to the extent and for the purposes that are clear from the environment in which it was made.

I will pay attention to "committing conclusive actions." I interpret it this way: the user posted his personal photos on the page and at the same time chose "privacy terms" as "public viewing" (with the available "only me" or "only friends", etc.) therefore provided a technical opportunity ( read - agreed) to unrestricted access to their images of other persons.

Through a search query in Google Images, I can not even guess on which page the Internet user posted his photo, however, if the search robot can read this information and then reproduce it in an array of other images, then this should be understood that the user has given consent search engine to post your image? Rationale: Visually, the search selection in Google Image from different portrait images is a page with a specific address that matches the search query. Why not publish online?

The citizen's consent to the use of his image may be withdrawn by him at any time, but the owner of the right to use the image may demand compensation for the losses caused by the withdrawal.

The judges looked at each other and explained "entry - ruble, exit - two." If the user once agreed to the use of his photo, let him not be surprised if he meets him not where he would like.

After the death of a citizen and in the absence of a surviving spouse, children or parents, no consent is required for the publication and use of the image of this citizen.

EXCEPTIONS

The consent of the depicted person is not required if the citizen is a public figure (holds a state or municipal position, plays a significant role in public life in politics, economics, art, sports or any other field), and the publication and use of the image is carried out in connection with a political or public discussion or interest in this person is of public importance. T

Consent is not required for the publication of images of missing persons, wanted criminals, eyewitnesses, witnesses of the incident, that is, if the publication occurs to protect law and order and security.

Consent is not required when publishing an image obtained during a survey that takes place in places open to the public, including open court hearings, or at public events (meetings, congresses, conferences, concerts, performances, sports competitions and similar events). Provided that the image of the person in the picture not the main object of use .

Consent is not required if, in general, the photograph displays information about the public event held. At the same time, attention should not be drawn specifically to the image of this citizen. Collective photographs where citizens have clearly expressed their consent to be photographed can be made public by any of the persons depicted in the photo without obtaining additional consent from other persons depicted in the photograph, provided that such an image does not contain information about the private lives of these individuals.

CONCLUSION

Regarding the provision of the Civil Code, which was included in the agenda of the plenum.

Article 152.1. Protection of the image of a citizen

1. Publication and further use of the image of a citizen (including his photograph, as well as video recordings or works visual arts in which he is depicted) are allowed only with the consent of this citizen. After the death of a citizen, his image can be used only with the consent of the children and the surviving spouse, and in their absence - with the consent of the parents. Such consent is not required in cases where:

1) the use of the image is carried out in the state, public or other public interests;
2) the image of a citizen was obtained during shooting, which is carried out in places open to free access, or at public events (meetings, congresses, conferences, concerts, performances, sports competitions and similar events), except when such an image is the main object use;
3) the citizen posed for a fee.

2. Manufactured for the purpose of introducing into civil circulation, as well as copies of material carriers in circulation containing the image of a citizen obtained or used in violation of paragraph 1 of this article, are subject to withdrawal from circulation and destruction on the basis of a court decision without any compensation. .

3. If an image of a citizen obtained or used in violation of paragraph 1 of this article is distributed on the Internet, the citizen has the right to demand the removal of this image, as well as the suppression or prohibition of its further distribution.

You can not publish photos on social networks without permission. It is forbidden to use your Vkontakte photos without permission. Is it possible to publish other people's photos from a page on a social network. Do not post other people's photos from social networks without permission.

Often, when publishing their photos, people do not know all the rights that belong to them. We will now try to understand the issue of copyright protection.

According to the current legislation, the copyright in photographs belongs to the photographer, he is a priori the author and has all the relevant rights. Photo copyrights are divided into two groups - property and personal rights. To personal photographer's copyright include the following: the right of authorship, the right to a name, the right to publication and the protection of reputation. The right of authorship extends not only to the photograph itself, but also to its individual details. Assignment of copyright is considered a civil offense, and in some situations even a criminal offense, and is punishable by law. The right to sign a photograph with one's name or pseudonym, or to publish it anonymously, is included in the concept of the right to a name.

Copyright protects both negatives (black and white and color), slides, digital images, and prints from them. If the negative or slide is lost, but the prints from them are preserved, then they are protected "as original". This greatly increases the value of such photo prints. There are photographers in the West who destroy the negatives after the first five to ten prints have been made. Their cost, due to the impossibility of creating additional copies, becomes very high.

The concept of the right to publish a photograph includes the right of the photographer to allow or refuse to bring the photograph to the public. This right can only be exercised once. If, for whatever reason, the photographer decides to withdraw his photograph after publication, he can exercise the right of withdrawal. Following the revocation, this photograph must not be used or referred to as the work of the photographer. The right to protect the author's reputation includes protection of the photograph from alteration: cropping, adding or cutting out individual details, changing the color scheme of the photograph, etc. Such changes are carried out only with the consent of the author.

The photographer's property copyright includes the photographer's right to prohibit or permit the use of a photograph through reproduction and distribution, as well as public display, reproduction, sale or free distribution of copies of a photograph, and importation of a photograph into the country. Property rights also include the right to change a photograph, i.e. for its processing. Of these property rights, there are statutory exceptions that specify those cases in which a photograph can be used freely, without the consent of the author.

Any part of the original photo is protected by copyright. It doesn't matter how small this part is. To use part of the original photograph, for example, in a photo collage, an agreement must be concluded with the author. If the use of a part of the image is carried out without an author's agreement, which violates the law, then the photographer or other owner of exclusive property rights may demand a ban illegal use and recovery of their losses or payment of monetary compensation.

Let's say, an elderly photographer in his declining years decided to transfer his photo library to the city archive for a certain fee. In this case, after the conclusion of an agreement between private and legal entity, there is a transfer of property rights to the archive. Now the archive has the right to dispose of the received photo library, using the pictures, say, for exhibitions and publications. However, at the same time, the personal rights of the photographer must be respected: the surname of the author is reproduced under the pictures. Proprietary rights give the photographer (or other owner of exclusive copyright) the right to authorize or prohibit the use of a photograph. In this case, use is considered to be the reproduction and distribution of copies of photographs, their public display, including on television. Permission to use a photo is given orally or in writing. Such permission is an author's agreement, according to which the user receives part of the property and copyrights.

Photographer's copyright arises from the moment the photograph is created and continues to be valid throughout the life of the author, as well as for 50 years after his death. However, photographs created before 1968 or earlier are no longer subject to copyright protection, as current legislation has changed.

If a photographer takes a photo on a business assignment, given by the organization employer, then such a photo falls into a special legal regime and is considered "official". The personal copyright of the photographer for this photo is fully extended, but the property rights are transferred to the employers, for the entire duration of the copyright of the photographer himself. Additional fee for such a photo, except wages, not provided.

"Official" includes only those photographs that were taken on official behalf. If the employer has established "working standards", then photographs taken in excess of this norm are not considered "service" ones. The legislation provides for the conclusion of an agreement between the employer and the photographer. The contract stipulates the photographer's copyright for "service" photographs. The content of such an agreement is regulated by the photographer and the employer. Such an agreement can be concluded not only with one individual photographer, but also with a group of photographers. If such an agreement has not been concluded, then the photographer does not have the right to use "service" photos for personal purposes.

try do not transmit(even to the customer) photos in RAW format, as well as other source and working files. For example, a Photoshopa (psd) file can be a good proof of your photography work.

Enter in camera settings information about yourself(field owner / owner, authour / author, etc.). Specify the data in such a way that it is not difficult to establish your identity. At a minimum: first name, last name and other information (for example, your website address or passport number, etc.).

On photographs posted on the Internet, and, if possible, on all other photographs of yourself and in any other ways of using (including when printing photographs in magazines) place information about the author on the photo itself. Accepted format: © Author's First Name, Year of First Publication (for example, © Ivan Ivanov, 2008). It will not be superfluous to provide a link to your site, especially if you publish photos under a pseudonym. Please note that Art. 1271 of the Civil Code notifies of the exclusive right (these are the property rights of the authors), therefore, if you create a photo by order and transfer all rights to the customer (only property rights can be transferred), then the customer may reasonably object to indicating you in the copyright (as copyright holder) and identify yourself. You can insist on indicating you as the author (by law you have such a right - Article 1265 of the Civil Code), then instead of the copyright icon (©) you can indicate "Author:". Article 1300 of the Civil Code provides for a specific amount of compensation for violation of non-property rights (deletion of information about authorship or copyright holder), and in fact violators almost always delete or cut off information about the author and / or copyright sign.

Here, such general methods of copyright protection are also applicable, such as: printing photos in a large format - an examination can determine the approximate time of printing, and accordingly - set your time priority - the priority of owning a photo in a certain period of time; notarial certificate; writing files to a one-time finalized disc; "registration" of copyrights in organizations for the collective management of copyrights; publication of photographs in periodicals and / or other publications, etc.

The property rights of the author can be transferred only on the basis of an agreement on the transfer of rights. The use of photographs by third parties without a contract is illegal and subject to liability. Thus, Article 1301 of the Civil Code of the Russian Federation provides for the right holder (initially the photographer, if the rights to use photographs are not transferred to other persons) to demand compensation in the event of violation of his exclusive right in the amount of 10 thousand rubles to 5 million rubles. At the same time, according to Article 1252 of the Civil Code of the Russian Federation, the photographer has the right to demand compensation from the violator for each case of unlawful use of the result of intellectual activity (for each individual use of the photograph), or for the committed offense as a whole. The big advantage of listing yourself as the author of the photo is that if someone used your photo without your permission, then according to the law, the minimum compensation for such copyright infringement will be not 10,000, but 20,000 rubles. for one (each) photo (although the court does not always consider each photo as a separate “case”)! This means that the photographer can claim monetary compensation, both for each use of his photo, and for the cumulative use of the photo.

Arbitrage practice

When applying to the court for protection of the copyright of a photographer, the latter must prove that he is the author of the photographs, and that he owns the proprietary copyright in the photographs that were illegally used by the defendant.

I note that in accordance with the law, the author of a work is considered to be a citizen whose name is indicated on the original or copy of the work. That is, when submitting statement of claim the photographer must submit printed photographs, which will be marked with his name.

And only if the other party disputes authorship, then other evidence must be presented confirming that the photographs were taken by the plaintiff. For example, providing the court with photo files in the .RAW format, which is mainly used by professional photographers.

At the same time, when applying to the court, it is necessary to prove that the defendant illegally used other people's photographs. For example, if he posted them on his website on the Internet, then the most preferable proof of the violation would be certification by a notary of the pages of the site that use photographs.

Despite the fact that when applying to the court, the photographer can independently determine the amount of compensation that he would like to recover from the violator, the court determines this amount at its discretion, having considered all the evidence available in the case and having heard the explanations of the parties.

In this case, the amount of compensation to be recovered must be justified by the court. When determining the amount of compensation, the court takes into account, in particular, the nature of the violation committed, the period of illegal use of the photograph, the degree of guilt of the violator, the presence of violations of the copyright of this particular author previously committed by the person, the photographer’s probable losses, the proportionality of compensation to the consequences of the violation, etc.

It should be noted that if the photographer's claims are satisfied, the court must recover from the defendant the costs incurred by the photographer related to the consideration of the case in court. This includes: the state duty paid for going to court, payment for notary services to certify the Internet site, payment for lawyer services and other expenses.

Frequently asked Questions:

No, it's not. Copyright in a photograph arises automatically - from the moment the photograph is taken and expressed in an objective form that is accessible to others. At the same time, unpublished photographs are protected in the same way as published photographs. Copyright protects a photograph, regardless of its artistic merit. Of course, an artistically weak photograph is unlikely to be used. However, if it is used, then it can only be done under copyright.

To indicate their copyright, the owner of the exclusive copyright may place a copyright notice on the photographs. The sign consists of following parts: the letter C, framed by a circle, the name of the owner of the exclusive copyright, the time the photo was first published. Of course, the absence of this sign does not deprive the photographer of copyright either in whole or in part.

In what cases can a photograph be used freely, that is, without the consent of the author and without payment of remuneration to him?

A photograph can be used freely, that is, without the consent of the author and without paying him remuneration, only in the following cases: - a published photograph can be used in publications, television programs and video recordings of an educational nature; - the photo can be reproduced in a review of current events on television; - a photograph published in the press can be reproduced by a library or archive at the request of individual citizens or for research purposes; – a photograph placed in a collection or periodical may be reproduced educational institution for the purpose of displaying during the classroom. In all other cases, the use of a photo is allowed only with the consent of the photographer and with the payment of remuneration.

The photographer is engaged in reproduction shooting of painting and graphics. Are slide reproductions subject to copyright protection?

Copyright protects any original, creative photographic works and works obtained in a manner analogous to photography. The task of a photographer who takes photographs of a work of art and graphics is to achieve the correct color reproduction characteristic of the subject. No more. For this, appropriate light and photographic film are selected, special devices that define the color temperature. In other words, the task of a reproduction photographer is not to create an original author's work, but to achieve maximum compliance with the original being shot. Therefore, the so-called “technical” photographs cannot be considered original and are not protected by copyright: reproductions of paintings, graphics, drawings, tapestries, mosaics, panels, stained-glass windows.

In the course of its professional activity photographers (and not only photographers) ask about the following questions:

• Can I post photos of people on sites on the Internet or position my photos in public outdoor exhibitions without the permission of the model?
• Can I sell photos of people without their consent?
• Can photos of a model be used in advertising without her permission?
• Can people be photographed without their consent?
• What is, When and Why do you need a model release?
• Can I, as a photographer, use photos without the model's permission?
• Should the agreement be oral or written?
• What if the model is underage?

The answers to these and other questions can be found in this article.

The general rule is that the model must agree!

The Civil Code of the Russian Federation has one interesting article- 152.1 "Protection of the image of a citizen", which just concerns photographers and models. On the one hand, this article answers a number of questions, and on the other hand, it raises new questions.

The basic rule says: the publication and further use of the image of a citizen (including his photograph) is allowed only with the consent of this citizen. After the death of a citizen, his image can be used only with the consent of the children and the surviving spouse, and in their absence, with the consent of the parents.

In other words, you can photograph a person without his consent.

A photographer can violate the rights of the person being photographed only when:

1. Reveals a photo, that is, it will open primary access to the photo to an unlimited number of people.

The concept of " promulgation" from point of view Supreme Court(clause 43 of the PPVS of the Russian Federation of June 23, 2015 No. 25) is the implementation of an action that makes this image available to the public for the first time by its publication, public display or in any other way, including posting it on the Internet.

2. Will start using the photo. The use of photography means: reproduction, distribution (including sale), public display (including on a website on the Internet), import of the original or copies of a photograph, processing of a photograph, etc. You can read more about what the use of photography is in the article: “What rights does a photographer have on a photo. Photographer's copyright.

When can photos be used without the permission of the model (person being photographed)?

In total, there are 3 exceptions to the general rule when you can use photographs without the permission of the model (clauses 1,2,3, clause 1, article 152.1 of the Civil Code of the Russian Federation).

Permission to release and further use of the photo not required in the following cases :

1. The use of the image is carried out in the state, public or other public interests.

This means that state, public and other public personalities have the right to a personal image in a narrower area than ordinary citizens. For example, you can use photos of the president, governor, etc. without their consent.

The decision of the European Court of Human Rights of 24 June 2004 contains the position of the national court that a certain “public figure” is a “significant figure modern history and therefore [she] must tolerate the publication without her consent of the photographs in question, which were all without exception taken in in public places».

Interesting findings can also be found in judicial practice(PPVS RF dated June 15, 2010 N 16 “On the practice of application by the courts of the law Russian Federation about means mass media»):

To public interest should not be attributed to any interest shown by the audience, but, for example, the need of society to detect and disclose a threat to democratic rule of law and civil society, public safety, environment.

It is necessary to distinguish between the reporting of facts (even highly controversial ones) that can positive influence for discussion in society of issues relating, for example, to the performance of their functions by officials and public figures, and the communication of details of the private life of a person who is not engaged in any public activity. While in the first case, the media perform a public duty in informing citizens on issues that represent public interest, in the second case they do not play such a role.

!! NEW CLARIFICATIONS Supreme Court

Without the consent of a citizen, the publication and use of his image is permissible when there is public interest, in particular if such a citizen is a public figure(holds a state or municipal position, plays a significant role in public life in the field of politics, economics, art, sports or any other field), and the publication and use of the image is carried out in connection with a political or public discussion or interest in this person is socially significant.

However, consent required if the sole purpose of publishing and using the face image is satisfying the philistine interest in his private life or making a profit.

No consent required to publish and use the image of a citizen, if necessary in order to protect law and order and state security(for example, in connection with the search for citizens, including those who are missing or who are participants in or eyewitnesses of the offense).

2. The image of a citizen was obtained during shooting, which is carried out in places open to the public, or at public events (meetings, congresses, conferences, concerts, performances, sports competitions and similar events) , unless such an image is the main object of use.

In other words, you can use a photo of a person who is in a crowd of other people, but you cannot use a cropped image where the portrait of this person is placed on the entire photo.

!! NEW CLARIFICATIONS Supreme Court(PPVS RF dated June 23, 2015 No. 25):

The image of a citizen in a photograph taken in a public place will not be the main object of use if, in general, the photograph displays information about the public event held at which it was taken.

By general rule if the citizens depicted in the collective photograph clearly expressed their consent to the photographing and at the same time did not prohibit the publication and use of the photograph, then one of these citizens has the right to publish and use such an image without obtaining additional consent to this from other persons depicted in the photograph, except in cases , if such an image contains information about the private lives of the specified persons.

3. Citizen posed for pay.

In this case, if the model was paid money for posing, it is necessary to take a receipt from her, which should indicate: the full name of the model, the amount she received, the date, from whom and for what she received the money, where, when and by whom the photo session was held (place) , signature. This receipt will protect the photographer from further claims of the model.

There is another option. It concerns shooting TFP, that is, when a model poses for a photographer for photos. In this case, the photos are payment for posing. This is not a free relationship. Therefore, in this case, a receipt must be taken from the model that, as payment for posing, the model received N number of photographs in digital or printed form.

If the model is a minor, a similar receipt should be taken from legal representatives - parents.

If a person himself posted his photos on the Internet: can they be used?

This question can be answered as follows (based on the PPVS of the Russian Federation dated June 23, 2015 No. 25):

1. Publication of the image of a citizen, including posting it yourself citizen on the Internet, and public accessibility such an image do not by themselves give others the right to freely use such an image without obtaining the consent of the depicted person (with the exception of 3 cases where consent is not required).

2. At the same time, the circumstances in which a citizen places his image on the Internet may indicate the expression of consent by such a person for further use of this image, for example, if it is provided for by the terms of use of the site on which the citizen posted such an image.

In what form to give consent to the publication and further use of the image of a citizen?

The law allows oral, written form. Because consent is a deal. Also, a transaction is considered to be completed in the case when the behavior of a person reveals his will to make a transaction.

For example, if a person voluntarily gives an interview to a TV channel, then from his actions (posing for the camera, answering questions) indicate his consent to the further use of the interview with his participation, including his images.

But, so that in case of misunderstanding, the issue does not reach litigation, it is better, of course, to draw everything up in writing.

You can also include a number of conditions in the consent (if desired). For example, it is possible to determine the procedure and limits for the publication and use of an image (provide for the period for which it is given, as well as ways to use this image).

Your question is answered by Art. 152.1 of the Civil Code of the Russian Federation:

1. Publication and further use of the image of a citizen (including his photograph, as well as video recordings or works of fine art in which he is depicted) are allowed only with the consent of this citizen. After the death of a citizen, his image can be used only with the consent of the children and the surviving spouse, and in their absence - with the consent of the parents.

Such consent is not required in cases where:

1) the use of the image is carried out in the state, public or other public interests;

2) the image of a citizen was obtained during shooting, which is carried out in places open to free access, or at public events (meetings, congresses, conferences, concerts, performances, sports competitions and similar events), except when such an image is the main object use;

3) the citizen posed for a fee.

2. Manufactured for the purpose of introducing into civil circulation, as well as copies of material carriers in circulation containing the image of a citizen obtained or used in violation of paragraph 1 of this article, are subject to withdrawal from circulation and destruction on the basis of a court decision without any compensation. .

3. If an image of a citizen obtained or used in violation of paragraph 1 of this article is distributed on the Internet, the citizen has the right to demand the removal of this image, as well as the suppression or prohibition of its further distribution.

The situation here requires a certain legal literacy, not even from you, but from the judge. As you can see, there are first and fourth paragraphs that protect you from all sorts of fixations if you don't want to. At the same time, there is the second paragraph, which has a very broad interpretation, as a result of which it turns out that you can actually be fixed in 90% of places. BUT! It must be understood that the legislator introduced this paragraph-exclusion specifically in order to specified places It was possible to carry out video surveillance in order to fix possible offenses.

If specifically about the shooting of people, without publication, then, according to the law, paragraph 2 applies here: “the image of a citizen was obtained during shooting, which is carried out in places open to the public, or at public events, except when such an image is the main object of use". Namely, its part, which says, "except when such an image is the main object of use", - that is, if you shoot in a public place the public place itself and a person got into the frame, then he cannot have claims against you , but if in a public place you shoot mostly a person, then this is already illegal. Expertise can determine what exactly you are filming.

>the use of the image is carried out in the state, public or other public interests;

The point is completely unclear. Here is my specific request: a person smokes in the entrance, he lives in this entrance. This is prohibited by an administrative article, therefore, it violates. I can prove this violation only with photographic materials: it is logical that by the time the district policeman called by me reaches the entrance, the smoker will already smoke and go home. Can I take a picture of him while he smokes? Is it legal or illegal to do this? Based on these points, no. So how then to be?

First, I recommend reading Section VII of the Civil Code of the Russian Federation (“The Right to the Results of Intellectual Activity”), namely Chapter 70 (“Copyright”) of the Civil Code of the Russian Federation. It clearly defines what is an object of rights, what is a violation, and so on.

Article 1274 of the Civil Code of the Russian Federation allows the use of other people's photos and videos without the permission of the author in the following situations: “Reproduction or communication to the public in reviews of current events by means of photography, cinematography ... works that are seen or heard during such events, to the extent justified by the information purpose."

That is, if you use a photo for informational (illustrating a news item), scientific, educational or cultural purpose, you may not ask the permission of the author, but you must indicate his name, the title of the work used and give a link to the source of borrowing.

Media platforms in social networks

Another important point described in Article 1277 “Free use of a work permanently located in a place open to free access”: “It is allowed, without the consent of the author or other right holder and without payment of remuneration, to reproduce ... a photographic work that is permanently located in a place open to free access, with the exception of cases where an image of a work in this way is the main subject of this reproduction ... or where an image of a work is used for commercial purposes.