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Caution, copyright: Use images on the Internet in a legally secure manner

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A guest contribution by lawyer Martin Steiger, Steiger Legal AG

Anyone who publishes content on the Internet needs suitable images. Posts in blogs and on social media or presentations are hardly conceivable without pictures. An image at least for linking and as a preview is almost always required, for example when publishing YouTube videos.

Matching images are found quickly: The Google image search and other search engines lead to many sources of images that can be copied for free and with a click of the mouse. However, a fee-based warning from a lawyer from Germany or Switzerland threatens just as quickly.

Caution, copyright: This is how images can be used on the Internet

Photographs and other images are protected by copyright in Switzerland, provided they are “intellectual creations” with an “individual character”. In Germany all photographs are protected with the so-called photo protection and in Switzerland such photo protection is to be introduced shortly. A layperson cannot reliably judge whether or not a photograph is protected in Switzerland today.

The first rule of thumb is therefore:

Images are protected by copyright. You always have to know why and for what a single image can be used on the Internet.

The most important reason why you can use images protected by copyright is the consent of the author or other rights holder. Consent often takes the form of licenses:

Pictures are published by picture agencies and in picture databases and are provided with conditions under which they may be used. The conditions may contain restrictions or allow free use. The use can be free of charge or be associated with costs - with license fees. There are numerous stock photo websites that offer images for free or inexpensive use. The respective conditions must be carefully studied, because otherwise, for example, there is a risk of Pixelio warnings that are subject to a fee. Licenses that do not allow social media use or are time-limited are risky.

No consent is required only in a few exceptional cases. The main exception is image quotations. Pictures may be quoted to a limited extent without consent, provided they serve "for explanation, reference or illustration".

Do not forget: Images on the Internet require a reference to the source

A source is always required for images protected by copyright:

You have to explicitly name the author and, in some cases, the license, and often also link them. In the case of images that have been published under a Creative Commons license on Flickr and Wikimedia Commons, for example, the naming and linking are mandatory; sometimes the image description and other information must be added. Anyone who does not publish any or an incomplete reference to the source risks a fee-based Creative Commons warning.

The second rule of thumb is therefore:

Images must always be published with a reference to the source. Only if no indication of the source is expressly stipulated can it be dispensed with.

You can always use images that are no longer protected by copyright. This is the case in Switzerland if the author has been dead for more than 70 years. (If you expect 71 years, you are on the safe side.) Such images are so-called in the public domain and belong to the public domain. This also applies to images whose authors voluntarily waive copyright protection, for example with the Creative Commons Zero (CC0) license. Since such images are not protected, the source can be dispensed with.

Beware, the popular image database Pixabay has waived the CC0 license since the beginning of 2019!

"Right to your own picture": People may only be photographed with their consent

You can always use images that you have photographed yourself or created in some other way. You are yourself the author and can determine whether, when and how such images are used.

A certain degree of restraint is required when photographing people, because the “right to one's own picture” applies: every person can generally determine whether they want to be photographed and, if so, what such photographs may be used for.

So the third rule of thumb is:

If you want to be on the safe side with pictures that show people, expressly ask the persons concerned for their consent. In practice, however, the actually restrictive “right to one's own image” rarely leads to problems in Switzerland.

Warnings: Don't panic!

The warnings mentioned are now commonplace. A warning is an offer to resolve an alleged copyright infringement out of court and amicably, usually against payment of damages.

Legal tech companies search the Internet around the clock for protected images and send out bulk warnings. Images are also found in presentations published as PDF files. If the warned do not pay, warning lawyers are often called in and sometimes there are lawsuits in court. Such warnings are lucrative, because due to the so-called license analogy - better license fiction - high monetary contributions can be demanded that would not be possible with proper licensing - especially by would-be photographers who abuse image databases such as Wikimedia Commons as warning traps.

The most common warning trap is the violation of the license conditions for images that are offered free of charge. Flickr and Wikimedia Commons and Wikipedia are particularly affected, as well as Fotolia and Shutterstock. Agence France-Presse (AFP), Getty Images, Keystone and StockFood are frequent warnings for paid images. When doing a Google image search, please note that you cannot rely on the displayed license conditions.

In the case of warnings, it is important that those who have been warned do not allow themselves to be put under pressure and keep calm instead of simply signing a cease and desist declaration and making a payment. It also doesn't help to insult the warning attorney by e-mail or on the phone ... On the other hand, it is worthwhile to check the legal situation and possible further action in individual cases. Often the complete waiver of the further use of the image with simultaneous submission of a suitable cease and desist declaration - without any obligation to pay! - be a viable option. Anyone who, as a layperson, does not want to risk expensive mistakes can be advised or represented by a specialist.

The fourth rule of thumb is therefore:

Received a warning? Don’t panic, but don’t dispose of it as waste paper either!

Common mistakes about copyright

In Switzerland, many warned people are mistaken that foreign law is not applicable or that judgments from abroad are not enforceable. The availability of a Swiss website in Germany is sufficient for an action to be taken in German courts. Judgments from foreign courts are transmitted to Switzerland by way of mutual legal assistance and can be enforced. In the case of monetary claims, the first step is usually a debt enforcement or payment order.

In general, there are many errors that lead to copyright infringement by private individuals and small and medium-sized enterprises (SMEs), for example:

  • The use of images is permitted because there is no © symbol or any other reference to copyright protection. Wrong, such a notice is irrelevant for copyright protection.
  • The publication of images on the Internet is a consent for use by third parties. Wrong, publication alone is not consent.

  • The use is advertising for the author. Wrong, anyone who wants to advertise an author with their protected images has to ask beforehand, even if one considers the use of the image to be the best advertisement.

  • If you do not earn money with your website, for example as a “private blogger”, no copyright can be infringed. Wrong, if you don't earn any money, you can still use pictures in an infringing manner.

  • Screenshots of images are not a copyright infringement. Wrong, a screenshot is just a copy.

  • A disclaimer on the website can prevent warnings or does not have to be liable for copyright infringements. Wrong, a disclaimer is not binding for third parties.

  • Images that you have edited yourself can be used freely: Wrong, at least as long as the original image is still recognizable.

Possibilities for the legally secure use of images on the Internet

Images on the Internet can be used with a high level of legal certainty, despite warnings and a restrictive copyright, especially by observing the four rules of thumb mentioned above.

In any case, the following options are legally secure:

  1. Use self-created pictures, for example self-photographed food pictures or product photos
  2. Use images that are not (no longer) protected by copyright, either because the author has been dead for 71 or more years or because the author voluntarily waived copyright protection (public domain)

  3. Use images from photo agencies and image databases, regardless of whether they are free or paid, with knowledge of the exact license conditions, whereby time-limited licenses should be avoided

Reading tip:Whitepaper «Find images and photos on the web and use them in a legally compliant manner» (Tinkla).

Note: For clarifications in individual cases, in the event of ambiguity and in case of doubt, we recommend that you seek advice from an experienced and qualified specialist such as a lawyer.

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