The European Court decided that publicly available pictures in the Internet may not be copied into a new website without prior consent of the picture’s owner.

A young student in a German school was asked by his geography professor to draft and present a paper about a touristic city. The student collected the data for his assignment from the Internet, looked up many websites from travel agencies and added pictures to his presentation. The student found a website of a travel agency with nice photographs from the town and copied the freely available pictures from the website into his presentation. The professor was proud of the good assignment of his student and published the presentation of his student on the school’s own website.

The photographer of the published picture found his photo on the school’s website and sued the school for publishing his photo on the school’s own website without his prior consent. The photographer of the picture claimed that he granted the picture rights to exclusively the travel agency and allowed them to publish his photo only in connection advertising their travel arrangements. The school argued that the published photo was not secured against copying and anybody visiting the website could easily download the picture from the internet page of the travel agency. Furthermore, there was no information on the website of the travel agency that downloading the photo was not allowed or a further publication of the photo available on the website was prohibited. Also, the student disclosed the original publishing of the photo by including a link to the website of the travel agency in his presentation. Still, the photographer sued the school for publishing his photos without prior consent and especially without having paid a license fee to the photographer.

The German courts brought the case before the European Courts in order to define the term of publicly availability as found in Art 3. 1 RL 2001/29/EG of the European Counsel of May 22, 2001 for harmonizing special aspects of the right of usage of publicly available information on the Internet. The European Court decided the case on August 7, 2018 under file number C-161/17 Renckhoff and informed the German courts about its findings: According to the European Court, the consent of the author of a photography to publish such picture in the Internet is only granted to the owner of a specific website. Therefore, the school had no right to publish the students presentation which contained a copy of the photo from the website of the travel agency as a photo may not be copied to any other website without the prior consent of the photographer. The European Court explained that the owner of the picture may reserve the right to retrieve its permission to publish his pictures on the Internet with the original owner of the website. In case the picture is been copied from the original website and published on a different third-party website, then the owner of the picture may have lost its rights to hinder the further publication of the picture in the Internet. According to the European Court publishing a photo in the Internet is not a global publication designated to all possible viewers worldwide, but typically restricted to a specific audience of a certain website. The publication of a photo in the Internet is usually selected for a explicitly defined group of possible users and thus designated for a specific audience. Publishing the picture on a different website may therefore also change the possible circle of audience and therefore must be seen as an extension of the rights of the owner of the picture. Therefore, such extension of a possible audience requires the prior consent of the owner of the picture.

The European Court made it once again clear that the right to copy pictures and photos from the Internet is legally quite limited, even if the downloading of such pictures can easily be performed and no warning is included in the text of the website itself. Downloading pictures form the Internet is allowed for the private use of the viewer only, however, any further publications of such pictures on the Internet under a different website is legally restricted. The legal rights of the owner of the pictures are protected and even a publication of a phote in a student’s presentation for the limited audience of a school’s public website may already be seen as an infringement of copyrights by the European Court.