Highlights from the arts
If you believe the winged saying of Lenin, then the most important of the arts in Soviet Russia was cinema. However, in Russia, with the proliferation of cheap digital cameras, photography seems to be beginning to claim the role of the “most important art”. Of course, you can also shoot video with a camera, but for some reason it’s not for everyone. As photographers like to say, “it’s not a camera that takes pictures, but a man.” So it’s theoretically possible to make an epoch-making shot even on a mobile phone camera. In this regard, the question of what kind of legal relationship arises in connection with photography, as well as how to protect their rights to a snapshot, excites an increasing number of readers of “Habr. Let's talk about them.
Photo right
Photography belongs to one of the youngest types of art. More or less massive scale of photographing has acquired only in the last hundred years, while his brother, the cinema, still remains inaccessible to a wide range of directors. True, the situation has recently changed: on home computers, you can do "cinema" special effects, very similar to those used in the "big" cinema ten years ago. But the most difficult part of filming is organizational: casting, writing a script, setting scenes and similar activities. A few enthusiasts who withdraw money for copper money confirm this rule even if they receive some prizes at film festivals and are noticed by critics. Since cinema and photography belong to the “young” arts, there are loosening in their copyright protection.
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The Bern Convention , which is the main international instrument in this field, establishes for films and photographs a reduced period of protection:
"(1) The term of protection granted by this Convention is the entire lifetime of the author and fifty years after his death.
(2) However, for cinematographic works, the countries of the Union have the right to stipulate that the term of protection expires fifty years after the work was made available to the public with the consent of the author, or if this event does not occur within fifty years after the creation of such a work - that the term of protection expires fifty years after the creation of the work. ...
(4) The legislation of the countries of the Union may determine the term for the protection of photographic works and works of applied art protected as artistic works; however, this period cannot be shorter than twenty-five years since the creation of such a work. "
Do not forget that the convention dates back to 1886, when there was simply no mass photography and filming: no wonder that the authors of the Convention treated them less strictly than the protection of other works. But even these nominal indulgences are not applied in practice: both in the law “On copyright and related rights” and in the fourth part of the Civil Code of the Russian Federation, the term of protection of any work is set to standard seventy years after the death of the author.
One of the most frequently asked questions related to photographs is “how to protect your rights,” if these photographs were borrowed by someone. The most consistent “advocates of rights” are interested in how to make photos “no one steals at all”, but the answer to it will be extremely simple: you don’t need to show photos to anyone, much less upload them to the Internet. As for the possible proceedings regarding the borrowing of your works, the main problem in them will be the proof that your photo was illegally used by the defendant. If we are talking about using the Internet, then proving this will be a non-trivial task: our courts are very reluctant to investigate "digital" evidence. Difficulties can also be evidence of your authorship in the event that a photo or video exists only in the form of a file and has not been published anywhere “on paper”. In the general case, it is possible to prove that you are the author, by submitting to the court either high-resolution photos or in the “internal” format of the camera (RAW).
For such proof, preparatory materials that are obtained when creating a work can be used, for example, unedited video materials prior to their installation. The fact of violation of your rights on the Internet can be documented with the help of a notary, who is allowed to provide evidence by the Fundamentals of the Law “On Notary”. As a rule, for Internet sites this consists in the inspection by the notary of certain pages with the drawing up of a protocol for such an inspection. However, in practice, the majority of notaries do not want to connect with the Internet, so finding among them one who agrees to do this is very difficult. In any case, in order to determine what actions need to be taken to protect their rights, you need to investigate a specific situation, and not give abstract advice. “Consult a lawyer” is the most appropriate recommendation.
Creativity in photography
Not so long ago, we discussed the question of the importance of creative activity in determining whether a work is protected by copyright. So, photography and video filming are those areas in which the existence of “non-creative” photo and video recordings is possible, which will not be protected by copyright. For example, this is exactly the nature of photography for documents. Her task is to simply fix the appearance of the holder of the document, for the possible establishment of his personality. Requirements for such photographs, as a rule, are strictly defined in normative acts or generally accepted. So the photographer has no place left for creativity.
Another example of “non-creative” photography is various kinds of surveillance cameras, which are plentifully placed along Russian streets and highways. Their function is also purely informational, and the task of the one who installs the camera is only in the choice of the desired angle. The result of such a survey is also more informational. In addition, "uncreative" may be other photos, depending on the purpose of their production. For example, photographic reproduction of any picture is done in order to simply fix its appearance, and therefore can also be considered as “information material”. Such a photo does not give rise to copyright of its creator, in accordance with article 1228 of the Civil Code of the Russian Federation: “Citizens who did not make a personal creative contribution to creating such a result are not recognized as authors, including only technical, consulting, organizational or material assistance or assistance, or only facilitating the registration of rights to such a result or its use, as well as citizens who exercised control over the performance of the relevant works. ”
In this case, the role of the photographer is reduced only to technical assistance in fixing the appearance of the work. However, if you are shooting a three-dimensional object, the activity of the photographer on the choice of the angle and the installation of light can be creative. As mentioned in the previous article, it is possible to establish the presence or absence of creativity only in each specific case, by examining a specific work.
When videotaping there is another nuance. The fact is that the authors of the “audiovisual work”, that is, the film, in accordance with article 1263 of the Civil Code of the Russian Federation, are the director, scriptwriter and composer who wrote the music specifically for the film. But in the simplest videos made by one person, there is neither the director nor the author of the script, since they, for the most part, simply record events occurring around the operator. The vast majority of them have no composer either. Therefore, the question arises: are such videos “audiovisual works”? The question is one of the controversial ones: someone thinks that the direction in creating them is to choose when shooting objects that fall into the frame. Some people say that the “director” must also be a “director”, and no production takes place in such cases. However, the list of “works” that are protected by copyright is not exhaustive in the law, so these videos can still be protected, but they will not be “audiovisual works”.
The right to own image
It is worthy of attention and the question of what problems may arise during the shooting phase, due to the fact that it gets into the frame. One of the “stumbling blocks” is images of people. All the time, the heroes of photos and videos “run over” photographers, demanding to remove the photo. They motivate this "the right to their image." It is enshrined in Article 152.1 of the Civil Code of the Russian Federation and referred to the number of so-called “intangible goods”. Earlier, in the Civil Code of the RSFSR of 1964, the corresponding article was in that part of it, which referred to copyright, so many continue to consider this inertia right to copyright. But this is no longer the case.
This right implies the consent of the person depicted in the photograph or videotape to give his consent to the publication and further use of his image. However, from this general principle there are three exceptions. First, “consent is not required when such use is made in the state, public or other public interest.” This is perhaps the most obvious exception. In one of the decisions of the Plenum of the Supreme Court regarding the application of the law “On Mass Media”, it clarifies what “public interest” is: “Public interest should not include any interest shown by the audience, but, for example, the need of the public in detecting and disclosing threats democratic state of law and civil society, public safety, the environment. ”
The second case is when permission is not needed - when an image of a person is taken when shooting in a public place or at a public event, unless the person is the “main object of the image”. Simply put, if the picture shows a group of people, or someone else is in the frame, it’s not at all necessary to ask for the permissions shown.
And, finally, the third case - when the person depicted posed for pay. Naturally, in order to confirm this, you may need a contract with the model. Foreign photobanks require such contracts without fail, if someone is depicted in the photo.
Freedom panorama!
In addition, the problem of the photographer may lie in wait in the most unexpected place: when photographing urban landscapes. It is connected with the so-called “freedom of panorama”, that is, the right to freely use images of architectural structures and other urban buildings that are in public places, or are visible from there. Article 1276 of the Civil Code of the Russian Federation gives this right with restrictions. Without the permission of the copyright holder, it is possible to make images of works of art located in places open for free visits, and also to transmit such images on the air or by cable.
However, there are two exceptions. Firstly, as in the case of a man, such a work of art should not be the main object of the image. That is, the norm is designed for accidental hit of buildings in the frame, as soon as you start to shoot a specific building, you can violate the copyright of its architect. Secondly, the obtained images of landscapes are forbidden to be used “for commercial purposes”, regardless of whether it is “the main object” in the photo or not. This, as you understand, immediately makes it illegal, for example, to issue postcards with city landscapes. In addition, only reproduction is permitted by law, that is, the making of copies, and their distribution is not mentioned in the law. True, if you are photographing “for yourself”, then the restrictions of article 1276 do not apply to you. However, already publication on the Internet is “bringing to the public”, which is also not allowed by law. In general, it is difficult to imagine a more stupid ban. The latest planned changes to the Civil Code seem to solve the problem: it is planned to allow the free distribution of photographs and video recordings with monuments, buildings and works of decorative art, located in places open for free visits. As they say, it's time.
UPD : If I use your photo or video with your participation against your will, send them a message
Hello, I ask you to delete my photo (video with my participation) on the basis of art. 1228 of the Civil Code and Art. 152.1 of the Civil Code .
Regards, <nickname selected for the site>.
Here I was also suggested an interesting Definition of the Moscow City Court of February 8, 2011 on compensation for non-pecuniary damage in the amount of 270,000 rubles for copyright infringement:
“ Iolis A.E. He appealed to the court to the Publishing House Svobodnaya Pressa LLC, ANO Internet Press, with a claim for the protection of infringed copyrights and the recovery of compensation for moral harm, citing the fact that Svobodnaya ID Publishing LLC, without permission, improperly reproduces and informs general information on the Internet portal www.svpressa.ru 11 photos, the copyright of which belong to him . "
Thanks to everyone who reads our articles and sends such useful links, suggestions and questions.
Photo right
Photography belongs to one of the youngest types of art. More or less massive scale of photographing has acquired only in the last hundred years, while his brother, the cinema, still remains inaccessible to a wide range of directors. True, the situation has recently changed: on home computers, you can do "cinema" special effects, very similar to those used in the "big" cinema ten years ago. But the most difficult part of filming is organizational: casting, writing a script, setting scenes and similar activities. A few enthusiasts who withdraw money for copper money confirm this rule even if they receive some prizes at film festivals and are noticed by critics. Since cinema and photography belong to the “young” arts, there are loosening in their copyright protection.
')
The Bern Convention , which is the main international instrument in this field, establishes for films and photographs a reduced period of protection:
"(1) The term of protection granted by this Convention is the entire lifetime of the author and fifty years after his death.
(2) However, for cinematographic works, the countries of the Union have the right to stipulate that the term of protection expires fifty years after the work was made available to the public with the consent of the author, or if this event does not occur within fifty years after the creation of such a work - that the term of protection expires fifty years after the creation of the work. ...
(4) The legislation of the countries of the Union may determine the term for the protection of photographic works and works of applied art protected as artistic works; however, this period cannot be shorter than twenty-five years since the creation of such a work. "
Do not forget that the convention dates back to 1886, when there was simply no mass photography and filming: no wonder that the authors of the Convention treated them less strictly than the protection of other works. But even these nominal indulgences are not applied in practice: both in the law “On copyright and related rights” and in the fourth part of the Civil Code of the Russian Federation, the term of protection of any work is set to standard seventy years after the death of the author.
One of the most frequently asked questions related to photographs is “how to protect your rights,” if these photographs were borrowed by someone. The most consistent “advocates of rights” are interested in how to make photos “no one steals at all”, but the answer to it will be extremely simple: you don’t need to show photos to anyone, much less upload them to the Internet. As for the possible proceedings regarding the borrowing of your works, the main problem in them will be the proof that your photo was illegally used by the defendant. If we are talking about using the Internet, then proving this will be a non-trivial task: our courts are very reluctant to investigate "digital" evidence. Difficulties can also be evidence of your authorship in the event that a photo or video exists only in the form of a file and has not been published anywhere “on paper”. In the general case, it is possible to prove that you are the author, by submitting to the court either high-resolution photos or in the “internal” format of the camera (RAW).
For such proof, preparatory materials that are obtained when creating a work can be used, for example, unedited video materials prior to their installation. The fact of violation of your rights on the Internet can be documented with the help of a notary, who is allowed to provide evidence by the Fundamentals of the Law “On Notary”. As a rule, for Internet sites this consists in the inspection by the notary of certain pages with the drawing up of a protocol for such an inspection. However, in practice, the majority of notaries do not want to connect with the Internet, so finding among them one who agrees to do this is very difficult. In any case, in order to determine what actions need to be taken to protect their rights, you need to investigate a specific situation, and not give abstract advice. “Consult a lawyer” is the most appropriate recommendation.
Creativity in photography
Not so long ago, we discussed the question of the importance of creative activity in determining whether a work is protected by copyright. So, photography and video filming are those areas in which the existence of “non-creative” photo and video recordings is possible, which will not be protected by copyright. For example, this is exactly the nature of photography for documents. Her task is to simply fix the appearance of the holder of the document, for the possible establishment of his personality. Requirements for such photographs, as a rule, are strictly defined in normative acts or generally accepted. So the photographer has no place left for creativity.
Another example of “non-creative” photography is various kinds of surveillance cameras, which are plentifully placed along Russian streets and highways. Their function is also purely informational, and the task of the one who installs the camera is only in the choice of the desired angle. The result of such a survey is also more informational. In addition, "uncreative" may be other photos, depending on the purpose of their production. For example, photographic reproduction of any picture is done in order to simply fix its appearance, and therefore can also be considered as “information material”. Such a photo does not give rise to copyright of its creator, in accordance with article 1228 of the Civil Code of the Russian Federation: “Citizens who did not make a personal creative contribution to creating such a result are not recognized as authors, including only technical, consulting, organizational or material assistance or assistance, or only facilitating the registration of rights to such a result or its use, as well as citizens who exercised control over the performance of the relevant works. ”
In this case, the role of the photographer is reduced only to technical assistance in fixing the appearance of the work. However, if you are shooting a three-dimensional object, the activity of the photographer on the choice of the angle and the installation of light can be creative. As mentioned in the previous article, it is possible to establish the presence or absence of creativity only in each specific case, by examining a specific work.
When videotaping there is another nuance. The fact is that the authors of the “audiovisual work”, that is, the film, in accordance with article 1263 of the Civil Code of the Russian Federation, are the director, scriptwriter and composer who wrote the music specifically for the film. But in the simplest videos made by one person, there is neither the director nor the author of the script, since they, for the most part, simply record events occurring around the operator. The vast majority of them have no composer either. Therefore, the question arises: are such videos “audiovisual works”? The question is one of the controversial ones: someone thinks that the direction in creating them is to choose when shooting objects that fall into the frame. Some people say that the “director” must also be a “director”, and no production takes place in such cases. However, the list of “works” that are protected by copyright is not exhaustive in the law, so these videos can still be protected, but they will not be “audiovisual works”.
The right to own image
It is worthy of attention and the question of what problems may arise during the shooting phase, due to the fact that it gets into the frame. One of the “stumbling blocks” is images of people. All the time, the heroes of photos and videos “run over” photographers, demanding to remove the photo. They motivate this "the right to their image." It is enshrined in Article 152.1 of the Civil Code of the Russian Federation and referred to the number of so-called “intangible goods”. Earlier, in the Civil Code of the RSFSR of 1964, the corresponding article was in that part of it, which referred to copyright, so many continue to consider this inertia right to copyright. But this is no longer the case.
This right implies the consent of the person depicted in the photograph or videotape to give his consent to the publication and further use of his image. However, from this general principle there are three exceptions. First, “consent is not required when such use is made in the state, public or other public interest.” This is perhaps the most obvious exception. In one of the decisions of the Plenum of the Supreme Court regarding the application of the law “On Mass Media”, it clarifies what “public interest” is: “Public interest should not include any interest shown by the audience, but, for example, the need of the public in detecting and disclosing threats democratic state of law and civil society, public safety, the environment. ”
The second case is when permission is not needed - when an image of a person is taken when shooting in a public place or at a public event, unless the person is the “main object of the image”. Simply put, if the picture shows a group of people, or someone else is in the frame, it’s not at all necessary to ask for the permissions shown.
And, finally, the third case - when the person depicted posed for pay. Naturally, in order to confirm this, you may need a contract with the model. Foreign photobanks require such contracts without fail, if someone is depicted in the photo.
Freedom panorama!
In addition, the problem of the photographer may lie in wait in the most unexpected place: when photographing urban landscapes. It is connected with the so-called “freedom of panorama”, that is, the right to freely use images of architectural structures and other urban buildings that are in public places, or are visible from there. Article 1276 of the Civil Code of the Russian Federation gives this right with restrictions. Without the permission of the copyright holder, it is possible to make images of works of art located in places open for free visits, and also to transmit such images on the air or by cable.
However, there are two exceptions. Firstly, as in the case of a man, such a work of art should not be the main object of the image. That is, the norm is designed for accidental hit of buildings in the frame, as soon as you start to shoot a specific building, you can violate the copyright of its architect. Secondly, the obtained images of landscapes are forbidden to be used “for commercial purposes”, regardless of whether it is “the main object” in the photo or not. This, as you understand, immediately makes it illegal, for example, to issue postcards with city landscapes. In addition, only reproduction is permitted by law, that is, the making of copies, and their distribution is not mentioned in the law. True, if you are photographing “for yourself”, then the restrictions of article 1276 do not apply to you. However, already publication on the Internet is “bringing to the public”, which is also not allowed by law. In general, it is difficult to imagine a more stupid ban. The latest planned changes to the Civil Code seem to solve the problem: it is planned to allow the free distribution of photographs and video recordings with monuments, buildings and works of decorative art, located in places open for free visits. As they say, it's time.
UPD : If I use your photo or video with your participation against your will, send them a message
Hello, I ask you to delete my photo (video with my participation) on the basis of art. 1228 of the Civil Code and Art. 152.1 of the Civil Code .
Regards, <nickname selected for the site>.
Here I was also suggested an interesting Definition of the Moscow City Court of February 8, 2011 on compensation for non-pecuniary damage in the amount of 270,000 rubles for copyright infringement:
“ Iolis A.E. He appealed to the court to the Publishing House Svobodnaya Pressa LLC, ANO Internet Press, with a claim for the protection of infringed copyrights and the recovery of compensation for moral harm, citing the fact that Svobodnaya ID Publishing LLC, without permission, improperly reproduces and informs general information on the Internet portal www.svpressa.ru 11 photos, the copyright of which belong to him . "
Thanks to everyone who reads our articles and sends such useful links, suggestions and questions.
Source: https://habr.com/ru/post/115910/
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