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Is citing photographs possible?

27 October 2016

A printed article is often accompanied by illustrations. The pictures enliven perception of the article and help to understand its contents. With this in view, GTRK-Omsk, a Russian company, used a number of photographic images (six pictures) to wrap up an article on its web-site (http://gtrk-omsk.ru). The pictures were used without permission of their owner. As part of documenting the infringement, the owner of the pictures, an individual entrepreneur, asked a notary public to verify the contents of the site which was done. After that, the entrepreneur sued the company.

The Russian law (Civil Code, Article 1274(1) (5)) provides that it is possible to use copyrighted works (including photographs) in reviews of current events without permission of the author or other right owner, but with obligatory indication of the author whose work is used in the scope justified by the purpose of information. The documents on file did not contain any evidence that placement of photographs had been made for the purpose of review of current events. The respondent argued that borrowing the pictures (the whole work or its part) may be regarded as citation. Indeed, free citation may be allowed for scientific, polemic, critical or informational purposes. If citation is made for other purposes it should be based on a contract with the copyright owner. In particular, citation aimed at enhancement of artistic impact, aesthetic perception of the work by the reader, spectator, or listener cannot be used freely because it does not answer the above mentioned needs. The list of limitations of the exclusive right contained in the law is exhaustive and cannot be construed broadly. The court issued a judgment in favor of the copyright owner of the pictures. The judgment was appealed by the respondent who argued that citation should be allowed.

In particular, citation aimed at enhancement of artistic impact, aesthetic perception of the work by the reader, spectator, or listener cannot be used freely.

In the meantime, the Supreme Court earlier made its input in explaining what citation is. According to the Supreme Court (Re: case 78-Г03-77 (78-G03-77)) a citation may be used to illustrate, confirm or deny the statements of the author. Under citation is understood inclusion of one or more fragments from the work of one author into the work of another author. The Supreme Court emphasized that citation is a literal reproduction of part of the author's text and not of another graphic form, such as photography or video. Hence, the use of photographs fully expressed in graphic form is not a citation because they were actually used as illustrations for the articles, which is allowed for educational purposes only and that, in the scope justified by its purpose only.

Illustration is a supplemental material, it enhances perception of the article by the reader. The absence of this additional material will not affect informational value of the article while a citation should be its inalienable part, in other words, a citation cannot be taken out from the article without damaging it and compromising its meaning.

Hence the court of appeal upheld the judgment of the court of first instance and awarded monetary compensation for the use of the photographs. The respondent appealed again however the court of cassation relied on the above explanation of the Supreme Court and upheld the judgment of the lower courts.

Interestingly, there was another case which also went up to the Supreme Court, and it was this case that created a broader interpretation of the word "citation". The case concerned a conflict between two candidates to the State Parliament (Duma) in one of the districts of St Petersburg.

In brief, the outline of the case was that one of the candidates printed and circulated a leaflet as part of the election campaign, while another candidate printed an article "Redundant Link" and supplied it with illustration of the leaflet of the first candidate. It may be understood from the title of the article that the second candidate might have tried to diminish the image of the first candidate. The first candidate sued the second candidate the result being that all the courts recognized that placing an image of the leaflet could be regarded as citation because, as a general case, citation is used to confirm or refute statements of the cited author. In this case it was just that. So the Supreme Court agreed that such citation should be allowed.

Those cases only confirm that there can be no hard and fast rule as to how such conflicts should be settled, and it is a topic which is likely to continue to change as time proceeds. Much depends on the specifics of the case which may lead to different court judgments.