Is it possible to “cite” an image, and if so, what are the boundaries of admissible citation? Such unobvious questions were raised before courts in case No.А40-142345/2015.

Ilya Varlamov maintains a blog on the LiveJournal web site. In his blog, Ilya publishes amateur photos which he took in various cities. Once, the blogger revealed that his photos were used on the Archi.ru web site and filed a claim with the Moscow Commercial Arbitration Court to protect his rights. In court, Mr. Varlamov claimed compensation in the amount of 440,000 rubles for violation of his rights to 22 photos.

The defendant published on his site reviews of architectural blogs, in which, in particular, he provided photos published by bloggers. This provided, the borrowing of the said photos was arranged according to all rules of citation, so all the information allowing to identify the author of each piece was specified. The plaintiff objected, referring to the fact that photo citation is impossible, as the concept of “citation” applies only to text.

The Moscow Commercial Arbitration Court refused to satisfy the plaintiff’s claims based on the fact that the law did not restrict the range of items which can be cited (therefore, photos can too be cited), and on the fact that the scope of citation was not substantial.

This decision was cancelled by the Intellectual Property Court, in whose opinion the defendant did not cite the plaintiff’s photos, but rather used them for purposes of illustrating his publications. And for such use consent needs to be obtained.

The Supreme Court, in its turn, agreed with the arguments of the court of first instance.

In practice, this position means that using photos without the rightholder’s consent within the frameworks of citation is allowed pursuant to Subclause 1 Clause 1 Article 1274 of the Russian Civil Code. This provided, in order for such citation to be legal, several main requirements must be observed:

• The author and the source of borrowing must be indicated;
• The work became available to the public on lawful grounds;
• The citation is given in scientific, polemic, critical, informational or educational purposes for elaborating the author’s creative concept;
• The scope of citation must be justified by the purpose of citation.

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The article contains photograph from http://fotogora.ru/ website.

Elena Berger  Senior Associate                                St. Petersburg  Тel.: +7 (812) 346 79 90

Additional notes

Should any questions arise in connection with the above or if you need any additional materials, please contact Elena Berger Office of Capital Legal Services.

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