Using someone else's photo on your own website is a violation, but it also happens otherwise
When it came to creating a website, our client, a small dental clinic, chose to work with professionals. The experienced designer achieved the desired result. They created a beautiful website filled with images and texts. However, the designer and owner of the site did not check the authorship of the content. The images were taken, as they say, from open sources.
A few years later, dentists received a claim for illegal use of the image from a lawyer hired by the image's creator to protect their rights. At the same time, a separate claim was made for compensation for the use of images, processing (they were cropped), and allocation in computer memory, resulting in a threefold increase in compensation.
At the same time, the author’s lawyer forgot that according to established judicial practice, including the Recommendations of the Scientific Advisory Council at the Court for Intellectual Rights on issues arising when establishing one economic goal and unity of intentions of the offender (paragraphs 56 and 65 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated 04/23/2019 No. 10 “On the application of part four of the Civil Code of the Russian Federation”), approved by the Resolution of the Presidium of the Intellectual Rights Court dated 02/15/2023 No. SP-22/4, there are no multiple violations if the image was used for a single economic purpose.
That is, in this case, the author is entitled to get only 1 compensation. Furthermore, in cases of violation of the exclusive right to a work, the author or other copyright holder, along with the use of other applicable methods of protection and liability measures established by Articles 1250, 1252, and 1253 of the Civil Code of the Russian Federation, has the right to demand, at its choice, payment of compensation in the amount of ten thousand rubles to five million rubles.
The court determines the amount of compensation within the limits established by the Russian Federation's Civil Code, based on the nature of the violation and other circumstances of the case, considering the requirements of reasonableness and fairness.
The violator has the right to justify the amount of compensation that he believes is reasonable; however, the author has the right to go to court and demand more. Moreover, in our case, we discovered that our client used a specific resource while creating the site, including the location where he obtained the controversial image. The author's lawyer confirmed that the image was placed on the resource with the author's consent.
The relationship between the online platform and the authors is based on an Agreement, to which the authors agree but have no right to change the terms.
Based on Article 428 of the Civil Code of the Russian Federation
An adhesion agreement is an agreement whose terms are determined by one of the parties in forms or other standard forms and can only be accepted by the other party if they join the proposed agreement as a whole.
As a result, by posting the image, the author accepted the terms of the agreement.
The agreement states that the author grants all users of the site a non-exclusive, global, perpetual, royalty-free license with the right to reproduce, distribute, modify, advertise, and grant sublicenses.
Thus, the author of the image granted users the right to use his works, which fully meets the requirements of Article 1238 of the Russian Federation's Civil Code.
The agreement with the lawyer to whom the author transferred exclusive rights to the image cannot cancel the terms of such a sublicense. Thus, even if you discover that you are using someone else's image, photograph, or other content, contacting intellectual property law professionals can reduce or eliminate the need for compensation payments.