The court of the Russian Federation allowed to publish other people's photos without the permission of the author? Not quite [Updated]

Photo by Ilya Varlamov from the article “ Why are there so many homeless people in America? ". Placed without the permission of the author , as did the portal 66.ru, which is the defendant in the claim of Ilya Varlamov. Photo: Ilya Varlamov // varlamov.ru

The court on intellectual property rights of the Russian Federation made a historic decision that may affect the work of the media in the country. At least, representatives of the portal 66.ru, who are suing the entrepreneur Ilya Varlamov, think so .

According to the suit of habraiser and photographer Ilya Varlamov ( zyalt ) against portal 66.ru, the court overturned the decisions of the courts of first and second instance, which decided to pay compensation to the author for the illegal use of photographs. Representatives of the portal 66.ru believe they have the right to publish informational photographs without asking the author’s permission, subject to the following five conditions.
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1. Photos - informational, that is, highlighting current economic, political, social and religious issues.
2. The name of the author is indicated.
3. The source of borrowing is indicated.
4. The copyright holder posted photos in open access.
5. There is no special ban on the use of photographs.

From the text of the resolution (abbreviated):

SP Varlamov Ilya Aleksandrovich applied to the Arbitration Court of the Sverdlovsk Region with a claim to OOO “66.RU” for the recovery of compensation in the amount of 460,000 rubles. for illegal reproduction and making available to the public on the Internet of 44 photographic works, as well as compensation in the amount of 90,000 rubles. for deleting information about the author on nine photographic works on the Internet.

By the decision of the Arbitration Court of the Sverdlovsk Region of 02/25/2016 (taking into account the definition of 02/25/2016 regarding the correction of the arithmetic error), the claims were fully satisfied.

By the decision of the Seventeenth Arbitration Court of Appeal of 06/06/2016, the decision of the court of first instance was changed, the claim was partially satisfied: a compensation in the amount of 220,000 rubles was collected from the company “66.RU” in favor of the entrepreneur.

In the cassation appeal filed with the Intellectual Property Court, the entrepreneur asks to cancel the decision of the court of appeal to cancel and leave in force the decision of the court of first instance.

Court sentenced:

The decision of the Arbitration Court of the Sverdlovsk Region dated 02/25/2016 in case No. A60-54898 / 2015 and the decision of the Seventeenth Arbitration Court of Appeal dated 06.06.2016 in the same case cancel.

The case should be referred to the Arbitration Court of the Sverdlovsk Region for review.

As we see, Ilya was dissatisfied with the small amount of compensation by the decision of the arbitration court - and filed a cassation appeal. As a result, the Intellectual Property Court of the Russian Federation overturned the decisions of both courts .

It is worth noting that the cassation complaint against the decision of the Seventeenth Arbitration Court of Appeal also filed the portal LLC 66.RU, which hired very competent lawyers from the law firm Just Aura.

The lawyers of this company chose a non-standard line of defense : they relied on the fact that LLC “66.ru” did not exist as a legal entity at the time of publication of the photos. In addition, Varlamov at that time was not registered as an IE. This means that the case is generally not of an economic nature and should not have been initially considered in the arbitration court.

For a more detailed interpretation of the text of the court order, see the explanation of the user mitasamodel . He explained in a very accessible manner the reasons why both complaints were rejected and why the case was sent for review.

Full text of the resolution

Precedent?

The Intellectual Property Court is the first specialized arbitration court in the Russian Federation, founded in 2013. He considers as a court of first and cassation instances cases on disputes related to the protection of intellectual rights.

Although Russia does not have a system of case law, but the decision of the Court of Intellectual Property Rights will most likely be taken into account when considering similar cases in ordinary arbitration cases. At the moment, the courts are considering the claims of Ilya Varlamov alone against 34 Russian media in the total amount of 11.9 million rubles. In August 2016, about 10 regional media companies of Russia created the StopWarlamov Committee, demanding to allow them free use of Ilya's photographs and put an end to the business of an entrepreneur who turned photography into a permanent source of income.

Regional media are against Varlamov, because Ilya Varlamov is known as the author of a series of publications about Russian cities - and numerous photographs of roads that are difficult to pass, sidewalks that are not easy to pass, and other evidence of municipal ruin. His posts on the Internet provoke heated discussions, and photographs are widely replicated by regional online media, often without compensation.

According to photographers, this precedent can create a dangerous practice of stealing photos by news publications and agencies.

Taking into account the decision of the Court of Intellectual Property Rights of the Russian Federation, the case will be reviewed in the Arbitration Court, so that it is still too early to put a final point on this issue.

UPD. Ilya Varlamov commented on the decision of the court today in the article “ About shitlessness in the media ”: “My blog clearly states that I forbid using my photos without permission. So I don’t understand this hysteria from scratch. ”