The use of photos online is extremely common. However, the fact that a photo has been uploaded to the Internet does not mean that it can be freely used by everyone.
The photographs are an artistic reproduction of reality, created as a result of the creative activity of their author. They are a work of art and as such are subject to copyright under the Copyright and Related Rights Act (CRRA). In order to be a work of art, they must meet two criteria: firstly, they must be the result of creative activity and, secondly, they must be expressed in any way and in any objective form.
Among the fundamental rights that arise for the author after the creation of the photograph are his right to seek recognition of his authorship of the work and his exclusive right to use the work created by him and to allow its use by others.
What does the right to use the photograph include?
Using, within the meaning of the law, includes actions such as the reproduction of the work, its distribution among an unlimited number of persons (for example, online), the public display of a work created in a photographic or similar manner, etc.
Therefore, any exercise of a right by a third party without the consent of the author constitutes an infringement of copyright, except in cases expressly provided by law, which constitute free use of works. Most often this is when the use is made for non-commercial purposes. Even in this case, it is advisable to mention who is the author of the photo.
The question is quite different when a photo is used for commercial purposes without the permission of the photographer.
Nowadays, it is very easy to access photos of professional photographers that they publish online on websites or social networks. Although the photos are published on the Internet, this does not automatically entitle another person to use them for their own business.
There are more and more cases in which photographers seek their rights against unlawful use of their photos. Different types of special software are created to monitor the unlawful use of photos, such as PHOTO CLAIM. Bulgaria already has a dozen of such cases that went to court.
What is the Bulgarian case-law in such cases?
The Bulgarian court has ruled a decision based on the following factual setting: a professional photographer from Berlin, Germany, published his own photographs on the subject of urban landscape (architectural works) on his website. With the help of the specialized software PHOTO CLAIM, it was later discovered that his photos were used by the Bulgarian company, registered as a tour operator, which also had a website, to advertise the offer of his excursions. In addition to the fact that the photographer did not give his explicit consent for the use if his photographs, he was not indicated as their author, nor was their source.
The court held that due to the author’s creativity in creating the photographs, they were subject to copyright, despite the fact that they had an urban landscape as their subject. Their use by the tour operator in the exercise of its commercial activity to advertise the services offered by it, without specifying who their author is, infringes his copyright to receive remuneration for his work and his right to be named as its author. The author has suffered damages from the unreceived remuneration as a result of the illegal use of the photos, as only the tour operator has realized income from the use of the photos. In such cases, according to the case-law, the author is due compensation in the amount of at least the amount for which the photographer offers his works and at a price at which in his practice the photographer would sell his photographs.
In the case described, the amount of compensation was determined on the basis of the price which the photographer would have received in the Republic of Germany on the basis of average prices systematized in the annual collection of the Union of Professional Photographers.
The copyright on photographs created by foreign authors is also protected on the territory of the Republic of Bulgaria under international treaties, in particular the Berne Convention for the Protection of Literary and Artistic Works, ratified by Bulgaria, as well as the Geneva Convention of 1971.
In case a foreign author claims infringement of his copyright, committed on the territory of the Republic of Bulgaria by a Bulgarian natural or legal person, the jurisdiction of the Bulgarian court derives from the fact that the infringer of copyright has a domicile or registered office and address of management on the territory of the Republic of Bulgaria. Bulgarian law is applicable, as it is in Bulgaria that the violation is alleged to have taken place.