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Stock photos – copyright-free or not?

The Sub-District Judge at the Noord-Holland Court issued an interesting decision in April 2017. A Dutch car company had placed a stock photo of a temperature gauge on its website, without permission. The stock firm, Masterfile, then formally warned the car company to cease this copyright infringement and demanded that they pay €3,200 for the unauthorised use of the photo. Not likely. It ended up in court. The Sub-District Judge held that there was absolutely no copyright on the photo. The car company won and Masterfile had to pay the costs of the proceedings (€7,294.92). This is a remarkable finding. It’s a rare occurrence for a judge to find that a photo has no copyright protection, no matter how boring the subject matter of the image might be. Judges often find that the photographer’s creative choices in relation to composition, lighting, exposure, white balance, shutter speed and so on all justify copyright protection, provided that the photo is sufficiently original (and not derived from something else). Does this mean more generally that stock photography can be used without permission from the stock office? To ask is to answer: no. And even if the photo has been carefully bought from the stock firm, it pays to be careful. The copyright on the photo may have been bought, but not the rights to objects and people appearing in it. Make sure and check the small print!

Daniël Haije, copyright lawyer

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