The Renckhoff case, C-161/17 is fascinating for a number of reasons: Firstly there is the bizarre fact that the reuse of a photograph of an historic bridge in Cordoba, copied from an online travel magazine and used in the Spanish language project of a school pupil, posted on the school’s website, should require a decision from the Court of Justice of the European Union. The words “sledgehammer” and “nut” spring to mind.

Secondly the conclusion of the Court is diametrically opposed to the lengthy preliminary opinion of its own Advocate General (in this case AG Campos Sanchez-Bordona). The Court does not always follow the opinion of the AG but in this case the contrast is quite striking and the Court does not address the reasons for this divergence of views.

Thirdly both the AG’s opinion and the judgment of the Court discuss the boundaries of the important concept of “communication to the public”. The latter is one of the restricted acts which are the preserve of the author (copyright owner). The question to be addressed by the CJEU was whether the re-posting on one website of a photograph previously posted without any (stated) restrictions and with the consent of the copyright holder on another website constitutes “communication to the public.” Both sites were freely available to users of the internet. If the answer is “yes” the re-use of the photograph is potentially  infringing, if “no” then it is not infringing.

The Court came to the conclusion that re-posting the photograph in these circumstances does count as “communication to the public” and is therefore infringing (unless in the given circumstances the re-use is covered by one of the exceptions to copyright ). There is interesting discussion of the concept of a “new public” which has become significant in copyright decisions by the CJEU and this discussion tends to reveal the limited usefulness of the “new public” concept in drawing a line between infringing and non-infringing reuse of copyright protected material. See also the coverage of this case on the IPKAT blog.

The IPKAT website (and various newspapers) have reported the latest (and final?) stage of the legal disputes surrounding the “Monkey selfie” case. In 2014 the photographer, David Slater started an action against Wikimedia for copyright infringement following online usage without permission of the photograph of a crested macaque. The macaque had “operated” the camera set-up by Mr Slater and taken an impressive selfie. Mr Slater claimed ownership of copyright in the photograph (he had painstakingly set up his camera in a manner which made the selfie possible).  Wikimedia successfully disputed whether a photograph taken by a monkey could be protected by copyright in the first place.

Subsequently PETA, an animal rights organisation, started a separate action claiming to represent as (“next friend” in US legal terms) the interests of the monkey in question, identified as “Naruto”. PETA (on behalf of Naruto) challenged the right of the wildlife photographer to exploit the celebrated monkey selfie, given that Naruto and not Mr Slater took the photograph and was therefore the rightful owner of the copyright. The district court having dismissed the claim, PETA launched an appeal, but David Slater and PETA settled out of court in 2017. Nevertheless the appeal process went ahead and the Opinion in Naruto v. Slater has been issued by the Court of Appeals for the 9th circuit. Read also the full report from the IPKAT website.

The claim by PETA was dismissed:  “Nonetheless, we conclude that this monkey – and all animals, since they are not humans – lacks statutory standing under the Copyright Act”  Opinion of the court, page 4 (Circuit Judge Bea). The court side-stepped, perhaps wisely any practical issues about the precise identity of “Naruto” as distinct from any other crested macaque of similar appearance in the same location. Would the monkey-selfie pass the originality test under EU copyright law to qualify for copyright protection? Answers on a postcard…

The blog of solicitors Collyer Bristow includes an interesting post about a copyright claim brought by a photographer against the well known model, Gigi Hadid. It is alleged that Ms Hadid circulated the photograph of herself to her millions of Instagram followers without seeking permission from the copyright owner (the photographer, Peter Cepeda). One interesting detail is that it is alleged a watermark carrying information on the ownership of the copyright was also removed from the photograph. In some cases people who recirculated the photograph were apparently misled into attributing the copyright to Ms Hadid and even to Instagram. The case is still to be decided but the scenario is an interesting illustration of how readily photographs can become separated from evidence of copyright ownership and the perils of reusing photographs on social media without permission.

Following the copyright questions raised by the famous “monkey selfie”, a horse called Betty grazing in a Welsh field photo bombed a selfie being taken by a young boy with his dad. Betty appears in the background with a big horsey grin. Subsequently the Bellis family entered their son’s selfie in a competition and won a £2,000 holiday as their prize. Unfortunately he owner of Betty the horse felt that she really deserved any share of the prize since her horse “starred” in the winning photo without her knowledge or consent.  You can see this reported on the 1709 blog and Walesonline along with the selfie itself. Is there a copyright issue? Not really: The boy and his father were on a public footpath. The copyright in a photograph belongs to the photographer, in this case the boy taking the selfie.  Presumably the father had the consent of the photographer when he entered the selfie in the competition.

In an interesting case from the USA, a photographer, Art Dragulis launched an action for copyright infringement against the Kappa Map Group because he objected to the fact that they had reproduced his photograph of a rural scene on the cover of a commercial publication. Kappa had not requested his permission to do that and naturally one would usually require the permission of the copyright holder to re-use their work.

It transpired however that Mr Dragulis had posted the photograph on Flickr in 2008. In doing so he had chosen to make the photograph available under the Creative Commons “CC-BY-SA 2.00” licence. In contrast to some CC licences which include the “NC” stipulation, the CC-BY-SA licence does permit commercial re-use of the work (in this case, the photograph).

The court held that Kappa were justified in using the photograph for the cover of their published atlas, given that they had credited Mr Dragulis as the creator of the work and also included the correct licence information. In doing so they had fulfilled the CC licence requirements.

The court also discussed the “Share alike” requirement: Under the CC scheme only “derivative works” would need to be made available on the same terms (that is free of charge) under the “SA” licence. Kappa had presenting the photograph unmodified as part of a “collection” of copyright works. The only change they had made was some minimal cropping of the photograph which did not make it a derivative work. Therefore Kappa were entitled to reproduce the photograph and also charge for their atlas.

The case illustrates the importance of being careful in your choice of licence, since the photographer could have selected an “NC” licence. There are full reports by Techdirt and the 1709 Blog.

A recent enquiry about sources for historical photographs of London which could legitimatelybe re-used for a  non-commercial project led me to look at the Europeana website. For anyone not familiar with Europeana already, this is an ambitious EU project to digitise European culture and make it available. The searchable database now contains many re-usable images, often covered by a Creative Commons Licence. 

UCL has also contributed material, notably through the Europeana Travel Project, in the form of historical images from the Library of the UCL School of Slavonic and East European Studies (SSEES).  

Another excellent website when searching for re-usable images is the University of Nottingham Xpert database.

The story of the copyright disagreement between the wildlife photographer and Wikipedia about the famous “monkey selfie”( See here for the BBC’s coverage ) sheds an interesting light on  the minimum requirements for copyright to subsist in a photograph under EU law.

This was discussed in the recent case before the European Court of Justice of Painer v. Standard Verlags GmbH (C-145/10). The photograph must be “…an intellectual creation of the author reflecting his/her personality and expressing his/her free and creative choices in the production of that photograph”.

Perhaps one could argue that leaving the camera where the macaque could get its hands on it demonstrates a “free and creative choice”, but on the face of it the photographer’s case that he can claim copyright does not seem that strong.

There is another way of looking at it: if the photographer had taken the photographs himself, then he could certainly claim copyright and would not suffer any loss of income from the reuse of the photographs.  On the other hand, the value of the increased publicity for his work which has come about because of the role played by the macaque could be priceless.