Beware: you have a duty to investigate when posting photographs on your website

Most company websites are full of photographs. However, a lot of companies are not aware that they can’t just use any photograph that they found on the internet, as illustrated by a case on which the county court of Overijssel recently ruled. In that instance a company, Meindersma, had posted a collage of photographs on its website, without the permission from the rightful owner.

The photographs were taken by a photographer named Wyszynski, who had transferred his rights to the photographs to Masterfile in 2007, which in turn supplied the photographs to third parties through its website. Meindersma had not requested permission from Masterfile to place the photographs on its own website.

The court ruled that Meindersma should have investigated whether or not posting the photographs on its website could be a copyright infringement. The court clarifies that institutions exist that search for the copyright holder. Apparently the court means commercial parties. According to the court, if the copyright holder cannot be traced, the user of the photograph is exonerated from any liability. The court rules that Meindersma had a profound duty of investigation which it did not fulfil.

The above ruling is in line with a ruling by the Court of Amsterdam in 2012, in which it determined that a company can be expected to trace the photographer and to investigate as to whether or not photographs are protected by copyright before using the photographs.

Given the above ruling, as a company, it is important to know whether the photographs you are using on your website (or any other promotional material)  are protected by copyright and who the owner of such rights is. You will have to investigate this thoroughly. The  rightful owner of the photographs will have to give permission to use the photographs for your website. In order to avoid liability and having to pay damages, it is vital to have proof of your investigation. If there is any doubt as to the ownership of photographs or whether or not they are protected by copyright, our advice is not to use them. There are various parties which – for a minimal fee – will provide you with the rights to use photographs of which the purpose has been established beforehand (known as stockphotos). Prevention is better than cure, after all.

If you have any questions on this subject, please contact the International Desk for a referral to one of our IP-specialists!

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