Netherlands Judge Redefines Creativity And Copyright

Posted on 12/1/2017 by Jim Pickerell | Printable Version | Comments (0)

A judge published a verdict on November 28, 2017 in the District Court of North Hoilland that could dramatically change the meaning of copyright in the Netherlands, if it is upheld.

Masterfile and Mediapro, its representative in the Netherlands, had brought a case against a website operator who had used a Masterfile distributed photo of a “clear close-up of a temperature gauge of a car.” The photo was used without permission and no payment was made by the website operator to Masterfile.

The judge found, “The photo is a true-to-life as clear and accurate as possible close-up of a temperature gauge in a car. The fact that variations are possible in the lighting, distance and angle, as pointed out by Masterfile and Mediapro at the hearing, is insufficient, in the opinion of the subdistrict court, to be able to speak of an original work. More is needed for that. With almost every photo, someone will, if not done by the camera automatically, set the illumination, distance and angle, but the photo does not yet bear the personal stamp of the photographer. That is only the case when the choices that are made in a photo result, which distinguishes itself from other photographs, that it is to be seen that the photographer has made personal choices. When asked, Masterfile and Mediapro did not state in a concrete way and/or substantiated in which aspects - which could indicate a personal stamp from the author - the present photo differs from other photographs taken by other photographers from a dashboard or more specifically a temperature gauge in a car."



In other words: the photo is not creative enough! The photographer has not done enough creative work which evidently this judge believes is a requirement to be eligible for copyright protection.

It appears that in the Netherlands it is up to a court judge to decide what is, and is not, enough creativity to qualify for protection. In the U.S. (and I believe most countries) the person who clicks the shutter is viewed as having copyright to the work from the moment of creation, regardless of how simple or complex the creation process might have been, or how similar the work might be to one created by someone else.



The website holder in this case may continue to use the photograph and his lawyer fees of € 7,294.92 must be paid by Masterfile.

In an analysis of this case published in Adformatie (see English translation below) Michiel Coops, a media lawyer for ABC Legal, suggests that when an image user is faced with such a claim from an agency like Masterfile or Getty Images the user should go to the Internet and do a visual search to determine if the same image had been used earlier. If the image can be found then the photographer may not have “taken the picture himself,” but picked “the picture from the Internet somewhere.”

Thus, any image found on Pinterest, Facebook, Twitter or via a Google Image search would be free to use because no photographer could prove he rather than someone else created the image.


Of course, this doesn’t take into account that multiple users may have licensed rights to use this same image before the user in this case grabbed the image from one of those other sites (he had to get it from somewhere), and felt it was free for him to use because it was already on the Internet.

If this ruling were to stand it would put an end to the stock photography business which is based on the principle of licensing rights of the same image to multiple users. In such a case each user pays a small fraction of the actual cost of creating the image and making it available so a potential user might find it. If any image shown on the Internet is deemed to be freely available for anyone to use then it would be impossible to post any image created for the purpose of licensing on the Internet because that would immediately decrease a significant portion of its economic value.

The logic also raises a question about photos taken at major news or red carpet events where dozens of photographers stand shoulder to shoulder taking pictures of the same situation. Expressions may change slightly, but the images created by of two different photographers may look pretty much the same. Who owns the copyright to these images? Does anyone own the copyright? Does the person who set up the general situation or event own the copyright?

If you go to a major city and photograph a famous building that has been photographed many times before do you own the copyright to the image you created? The building hasn’t changed. Have you exhibited a sufficient amount of creativity to meet the standard set by this judge.

If a user finds an image on a stock agency website, by the judge’s logic the user may grab the image and use it for free because it has already appeared on the Internet.

Bas van Beek, with the stock agency Hollandse Hoogte, suggests that judges may be getting very tired of the loads of image infringement cases being brought before their courts. He says it is always better to settle than to go to court. Less than 1% of the infringements Hollandse Hoogte discovers end up in court.

Thankfully this ruling only applies in the Netherlands. I assume it will be appealed.

Adformatie Story


Below is a full English translation of Michiel Coops story in Adformatie.

In a verdict that was published yesterday (November 28), the District Court of North Holland made an interesting statement regarding the use of a photograph by (the holder of) a website. The judge ruled that there was no copyright in the photograph, a judgment that is rare in this respect. This is a very favorable statement for anyone who loves a website.

Course of events
Everyone knows them by now, parties like Getty Images and Masterfile that summon websites on behalf of photographers to stop using a photo. This is often done by a lawyer who, in addition to the prohibition to use the photo (copyright), claims a high license fee (damage) along with the legal fees incurred (extrajudicial costs). In practice, the photo is usually removed and there is discussion about the amount of the fee that the website holder should pay. A holder of a photo has the right to the full lawyer's costs (in the case of unlawful use of a photo) (except for the reasonableness test). It is a simple business model, because nowadays you search the Internet fairly simply to check if a photo is being used by someone else. There is no need for complicated software (anymore), see for example Google Image Search.

Copyright infringement?
With these kinds of issues, the material (right) question is often overlooked. The website holder is usually under the impression that the photographer has the copyright on the photo, because he did not take the picture himself and picked the picture from the internet somewhere. However, copyright does not need to rest on all photos. In order for a photo to be eligible for copyright protection, there must be a so-called "own original character" and the photograph must bear a "personal stamp of the maker". The fact that the product must have its own original character implies, in short, that the form may not be derived from that of another work (it should not resemble too much of an older work). The personal mark lies in the fact that there must be a form that is the result of creative human labor and thus of creative choices.

No copyright
At the latter point, Masterfile's argument failed. She filed a legal procedure against a website holder who had used a photograph of a temperature gauge of a car. The court decision does not clearly state whether the photograph was made by a Masterfile photographer, but the website owner does not seem to deny this. The photo is a clear close-up. The photographer can not always do enough creative work (which is thus a requirement to be eligible for copyright protection). The judge therefore judges as follows:

"The photo is a true-to-life as clear and accurate as possible close-up of a temperature gauge in a car. The fact that variations are possible in the lighting, distance and angle, as pointed out by Masterfile and Mediapro at the hearing, is insufficient, in the opinion of the subdistrict court, to be able to speak of an original work. More is needed for that. With almost every photo, someone will, if not done by the camera automatically, set the illumination, distance and angle, but the photo does not yet bear the personal stamp of the photographer. That is only the case when the choices that are made in a photo result, which distinguishes itself from other photographs, that it is to be seen that the photographer has made personal choices. When asked, Masterfile and Mediapro did not state in a concrete way and / or substantiated in which aspects - which could indicate a personal stamp from the author - the present photo differs from other photographs taken by other photographers from a dashboard or more specifically a temperature gauge in a car."

In other words: the photo is not creative enough! In my understanding, this applies to many more stock photographs of random objects with little creativity to abandon. Compare the work of a reproduction photographer who should represent a work of art as faithfully and objectively as possible and thus add as few properties as possible.

Rate the photo
When a website owner is approached by a photographer, it is good to first of all see if there are not similar photographs published on the internet from the earlier date. This can be done by using Google Image Search as noted. If you find an older photo, the appeal ends up on the copyright of a photographer (because his own original character is missing). If this search does not offer a positive solution, then the degree of creativity involved in making the photo will have to be considered. Just adjusting the exposure, distance and angle of the camera is insufficient according to the Noord-Holland court to demonstrate creativity in the copyright sense; this is how this statement is learned. It should be noted that Masterfile can appeal against this decision. Then the case will be looked at again and a judge could judge otherwise, now that the judgment on this type of issue is subjective in nature.

The website holder in this case may continue to use the photograph and his lawyer fees of € 7,294.92 must be paid by Masterfile.

Michiel Coops is media lawyer at ABC Legal


Copyright © 2017 Jim Pickerell. The above article may not be copied, reproduced, excerpted or distributed in any manner without written permission from the author. All requests should be submitted to Selling Stock at 10319 Westlake Drive, Suite 162, Bethesda, MD 20817, phone 301-461-7627, e-mail: wvz@fpcubgbf.pbz

Jim Pickerell is founder of www.selling-stock.com, an online newsletter that publishes daily. He is also available for personal telephone consultations on pricing and other matters related to stock photography. He occasionally acts as an expert witness on matters related to stock photography. For his current curriculum vitae go to: http://www.jimpickerell.com/Curriculum-Vitae.aspx.  

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