As we live in the era of the Internet and social media keep picking up the pace, people are increasingly facing legal issues regarding how to use various resources becoming available. Photographs – perhaps the most common resource – are among these things.
As we come to this, users of certain social media might ask themselves a question: is it possible or even lawful to use someone else's photos published on social media accounts without consent from their owners?
In fact, the Supreme Court answered that question in its resolution of 19 July 2023 in case No. 214/11028/21. Below I will tell you about this in more detail, but to start with, I would better say what fundamental rules and what laws regulate all of this at the very basic level.
When a photo can be published openly: what does the law say?
It is Article 308 of the Civil Code of Ukraine that governs the use of third-party photos.
The legislation provides that a photo may be lawfully published on two occasions only:
- if a person paid a fee for its publishing;
- if it is necessary to protect such person’s interests or interests of third parties.
Otherwise public display requires consent from the person who is depicted in the photo.
Thus, as a general rule, photos may be disseminated and publicly displayed only with consent from the individual, with few exceptions listed above.
However, such legal rule is silent about a form in which such consent is to be given.
The Supreme Court about using third-party photos
МIt may be concluded that consent to public display of a photo can be given in any form, either in writing, verbally or as tacit consent. The Supreme Court sticks to the same opinion in the resolution referred to above.
Though everything is clear with the verbal and written consents, there still may be questions about the tacit consent form.
I will be straight saying that the issue of whether third-party photos are used lawfully depends on the circumstances (specifics) of their publication. To be exact, it is about whether such a photo is published publicly and available to everyone; or whether it is published to a certain number of people only (for example, in a Facebook private profile). More so as the court has stressed the same!
If a person (who is in the photo) publishes the photo in his or her public account, that is, the one that is generally accessible, then other people may lawfully use such photo (by forwarding, publishing, etc.) “without consent from the owner” because tacit consent is presumed in this case.
However, if a photo is published to a certain group of people only it would be unlawful to use such photo without the owner's consent.
A photographer using third-party photos
Definitely I should bring your attention to the procedure to be followed by professional photographers who intend to use third-party photos. In such circumstances, the right to use third-party photos often overlaps with the copyright of the photographer who took the pictures as the owner.
As a matter of the Law of Ukraine on Copyright and Related Rights, the copyright also extends to pieces of photographic works. Thus, unless otherwise provided, the author (owner) enjoys all property and non-property rights to the piece of work (photo), including the right to publish the same.
Therefore, it is essential to agree, before shooting, on all aspects of how the author (photographer) may lawfully use the person’s photos.
It would be better if you did this in writing by signing the relevant document (agreement). By doing so, you will be sure that the photos will not be used without your permission and, if a violation does occur, you will be able to seek fair compensation. As ever, please keep in mind that if you don't know how to draft an agreement it is my advice that you contact a professional lawyer focusing on intellectual property law.
Moreover, if the conditions are written down as mentioned above, it would be useful both to the person who will be taking photos (as you will be able to control and restrict their use) and to the professional photographer (who thus will be confident that consent is clearly given and everything is lawful).
Written by Andrii Pisotskyi, Lawyer.
