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In a recent judgement, The European Court of Justice strengthened the rights of photographers and brought about a new evaluation of the actual damages incurred by copyright violations.

By our guest columnist, Sabine Pallaske, bildgerecht.de

On January 25th, 2017, the ECJ, in responding to a request made by a Polish court, decided that it is in compliance with European law to demand compensation for damages incurred by copyright violations which go beyond solely recuperating the entitled fees and royalties which would have been collected if the usage rights had been acquired legally.
In cases concerning visual imagery, rulings in German courts normally don’t include compensation for damages other than the payment of fees and royalties which were evaded through the infringement, even though other forms of compensation are common for film and music (through, for example, fees charged by the state-authorized royalty collection association in Germany, GEMA). Not risking much in expenses actually encourages people to feel inclined to take a chance at using photographs or illustrations without authorization. If they’re caught doing so, it won’t cost them much more than if they’d secured the rights legally.

When normally dealing with a case of illegal usage, the fee ordered to be paid is the same amount as for authorized usage, with only the addition of court costs and lawyers’ fees. In Germany, when a photographer isn’t credited for their work, a supplemental amount may be awarded for failure to mention the photographer’s name. However, the infringers and the photo thieves have no trouble managing what they view as a negligible amount to pay. There are no costs associated with every undetected illegal usage, and if they do get caught, they can cover those costs with the non-paid fees and royalties which they’ve evaded. It’s usually the photographer who gets stuck with the expenses for the online research which involves tracking down the copyright violator and securing data, plus covering the fees upfront for a written notice of copyright violation to be drawn up and delivered to the offender.

What makes the ECJ’s judgement so special is that it invokes the Directive 2004/48 to enforce the rights of intellectual property. The ECJ has stated that compensation in the amount of the damages suffered (as the German courts have normally determined so far, based on analogy royalties with no supplemental fees) is not sufficient to cover the costs for the detection of an infringing act and identification of the infringer on one hand, and for the intangible losses on the other. Unlike claims handled through GEMA, up until now it has been the duty of the infringed upon photographer, illustrator or videographer to substantiate in detail the costs which are being claimed. Yet this may be about to change!

The ‘monitoring costs surcharge’, which GEMA has already been enforcing for a number of years, can also be imposed by other infringed upon parties. On request of the Polish court, the ECJ declared itself clearly in favor of an option for determining a lump sum for damages. It’s crucial that the judgement doesn’t fall back on the royalty analogy, which accepts the court’s estimate of what the image’s ‘economic value’ might be, subjectively evaluated in terms of the image’s reproduction and publishing. This angle often puts the photographer at a disadvantage, as proven by plenty of well-known cases where stolen images appearing on commercial sales platforms, real estate sites or food & lifestyle blogs were compensated with the lowest royalty rates and fees.

The ECJ has explicitly stated that a lump sum compensation or the assessment of costs at double the rate of the actual accumulated fees is permissible and isn’t to be classified as punitive damages. Regarding disputes in the future, this decision may also increase the amount of damages for copyright violations concerning visual imagery, strengthening the rights of photographers and illustrators, especially when the illegal usage occurs in digital media.
It should be noted that such a judgement doesn’t mean that things will change overnight. However, armed with good representation and supportive courts, this decision will help those photographers, illustrators and videographers who have suffered infringements to claim compensation above and beyond unpaid royalties and fees.

The judgement (verbatim text).
The directive (verbatim text) .