Q: Are all online images protected by the law? A: As images (usually divided into artistic works and photographic works) generally involve their creators’ unique decisions as to the scene, angle and various variables during their creation, they are generally deemed as works under the definition of and protected by the Copyright Law. However, there are limitations. The public can, to a great extent, freely use images that have exceeded the period of protection set by the Copyright Law, and can use the images within fair use scope provided by the Copyright Law.
Q: Can online “orphan” images be used?
A: Many images found through a search engine or posted on image websites without an ownership mark (i.e., a watermark) are usually called “orphan” images. Many internet users (including enterprises and individuals) believe that the orphan images that they are using do not have an author or are deemed to provide a licence by the copyright holder. This, however, is not so. Under the Copyright Law, an author may not sign his or her work and the fact that such a work can be found through a search engine does not imply that an author has licensed the work to others.
The Copyright Law sets out the circumstances under which fair use is permitted. Currently there are some websites, such as Getty Images, that permit internet users to use images in their image libraries with certain restrictions (e.g., non-commercial use). We recommend that internet users do not use so-called orphan images without an authorization check. Before using them, efforts should be made to confirm that such use falls within the scope of fair use under the Copyright Law, or to determine the extent and manner of using such images by reviewing the relevant agreement provided on the website or the image source provided by the search engine. We also recommend acquiring relevant copyrights such as via image companies before using these images.
Q: How does a company avoid legal risk of being sued for infringement upon an image in its daily operation?
A: Internet users should pay attention to the following points: first, do not use online images where the source is unclear or the title is flawed. If an image needs to be used in business operation, it must secure a licence from the author before use, or engage a third party to create the relevant image
and expressly set rules on ownership or the use of the image in the engagement agreement.
Second, as a website operator, one’s status either as an internet service provider or content service provider should be expressly stated in a relevant agreement or statement on the website. A website intellectual property protection system and channel for complaints that satisfy the requirements of laws should also be established to respect and protect others’ intellectual property and deal with infringement complaints lodged by an author in a timely manner.
Finally, if a suit is filed after use of an image, one should proactively prepare an effective litigation strategy, collecting evidence, and communicate with the court or plaintiff on potential resolution of the dispute.
Q: How does one respond to an infringement suit filed by an author?
A: First, the defendant must determine whether the image involved constitutes a work protected by the Copyright Law. As mentioned, although the majority of images constitute original works, this does not necessarily mean that any and all images constitute a work under the Copyright Law. In past judicial practice, there have been instances where the court held that an image at issue did not satisfy the requirement of originality for a work under the Copyright Law, and accordingly, using such an image did not constitute copyright infringement.
Second, one must verify the plaintiff’s qualifications for filing a complaint. When responding to a suit, it is necessary to check whether the plaintiff has submitted evidence, like sketches for the artistic work or the originals of the photographic work, and a licence to prove the right to initiate legal action.
Third, one must identify its act from the perspective of the Copyright Law, and judge whether the relevant act infringes the plaintiff’s copyrights, and what types of copyright. Generally speaking, a court will require the plaintiff to clearly state which copyrights the defendant has allegedly infringed. The defendant should determine, in the light of the actual act committed, whether the act falls within the scope of the copyright protection claimed by the plaintiff, and whether the same constitutes infringement.
In practice, some enterprises argue that, as website operators, they have not directly committed infringement, the relevant images having been uploaded to their websites by users, so they are not liable for infringement. The alleged infringer should at least collect and provide the following evidence: evidence that it has not committed the alleged infringing act; evidence that the image involved was uploaded by a user; and evidence that it has performed its obligation of reasonable care and has not carried out such indirect infringing acts as abetting, assistance, etc. If infringement genuinely has occurred, an internet service provider may cite the “safe harbour principle” to be exempted from damages if the statutory conditions are satisfied.
Q: Currently, how are damages calculated in images copyright infringement cases?
A: The legal framework for determining damages in copyright infringement disputes related to images is identical to that for other types of copyright infringement cases, in order being the actual loss incurred by the plaintiff, the benefit earned by the defendant from the infringement, and statutory damages. However, to date, there is no clear legal provision specifying the method for calculating damages in image copyright infringement cases, giving the courts relatively wide discretion in this respect.
When determining the measure of damages, a court will usually take into consideration the following factors: the cost of creation of the image; the originality and popularity of the image; the degree of subjective fault of the defendant in using the image in question; and the scope, continuous duration and method of use, etc.
Li Binxin is a partner and Shang Guangzhen is an associate at AnJie Law Firm