The Market Court of Finland handed down two significant decisions on photograph rights

• Finland

• Other

27-04-2021

The Market Court ruled that two Finnish media companies infringed a world-famous athlete’s rights to an Instagram photo by sharing screenshots of the photo in their online papers without the athlete’s permission. The Market Court’s decisions are also interesting from a European perspective.

A world-famous Finnish athlete won two significant Market Court cases concerning photograph rights against Alma Media Suomi Oy and Sanoma Media Finland Oy. The decisions have been published on the Market Court’s website in Finnish: MAO 125/21 and MAO 126/21.

The disputes concerned photos published by the athlete on his Instagram account. The tabloids Iltalehti and Ilta-Sanomat had taken screenshots of the photo and published them in their online papers without the athlete’s permission.

In Finland, photographs are protected in two ways. Firstly, photographs can be protected by copyright if they are independent and original enough to reach what is called the threshold of originality. Photographs that do not reach the threshold of originality are protected by related rights. The photographer thus has the exclusive right to control a photographic picture as set out in Section 49 a of the Finnish Copyright Act (404/1961). This means that, as a rule, nobody has the right to share photos published in, for example, social media without the consent of the photographer.

The Copyright Act does, however, also provide for certain exceptions to the exclusive right of the photographer. The media companies argued in these cases that copying the photo was permitted on the basis of the press’s right to quote when reporting on current events. They also claimed that quoting was permitted under the ‘general quotation right’, and that it was not a question of ‘communication to a new public’.

The Market Court confirmed that the media companies had infringed the athlete's rights to the photograph and prohibited them from communicating the copies they had made of the photo to the public.

The use of the photograph did not constitute use permitted under the press’s right to quote

According to the decisions handed down by the Market Court, this was not a question of the use of ‘the press’s right to quote’, under which media are permitted to use another party’s photographs without their authorisation when reporting on significant events.

Under Section 25(1)(2) of the Copyright Act, works of art made public may be reproduced in pictorial form in a newspaper when reporting on a current event. The InfoSoc Directive 2001/29/EC also enables limitations to copyright when works or other subject-matter are used in connection with reporting on current events. The concept of current event as referred to in Finnish legislation has not been defined in detail, nor does any previous Finnish case law exist on the question.

The Market Court ruled in its decisions, however, that not just any event can be considered a current event even if the event itself may interest the public. Thus, it can be deduced from the Market Court’s decisions that even if it were question of a rather well-known person whose life readers might be interested in, everything occurring in the life of that person does not constitute a current event as referred to in the Copyright Act.

The Market Court found that the current event described in the articles of Iltalehti and Ilta-Sanomat was that a well-known athlete published a humorous photo on his Instagram account. The Market Court noted that such an event, uploading a photo on Instagram, has to be considered very commonplace and trivial. The Market Court further confirmed that considering such an event to constitute a current event as referred to in the Copyright Act would have meant too far-reaching a limitation of the protection provided by the photographer's exclusive right. If such events were considered current events, it would mean that the photographer’s right had no real significance.

Based on the Market Court’s decisions, it is thus clear that a well-known person publishing a photograph on Instagram does not, in itself, constitute such a significant news event that it would entitle the press to use their photographs without their permission.

General quotation right not applicable to photo citations?

Sanoma Media Finland Oy also invoked the ‘general quotation right’ referred to in Section 22 of the Copyright Act, under which a work made public may be quoted, in accordance with fair practice, to the extent necessary for the purpose. The provision differs from Section 25 of the Copyright Act and, among others, the press’s right to quote, in that on the basis of the wording and preparatory works of the Act and legal literature, Section 25 has been considered to permit the use of a work of art in its entirety, while Section 22 has mainly been considered to concern the use of parts of the work.

The general quotation right has thus been considered to be poorly applicable to photo citations since a photograph generally has to be reproduced in its entirety. The Market Court noted that, in the case in question, the photo had appeared in the quotation of Ilta-Sanomat in its entirety. The Market Court thus confirmed that Sanoma Media Finland Oy did not have the right to publish the athlete’s photograph in its entirety on the basis of the provision concerning the right of quotation.

Even though the Market Court’s decision does not categorically exclude the possibility of citing photos on the basis of Section 22 of the Copyright Act, after the decision it will be even harder to claim that the general quotation right also concerns photographs.

The photo was communicated to a new public

Alma Media Suomi Oy, in turn, also claimed that the photograph was not communicated to a new public through Iltalehti’s website. Under the Copyright Act, the holder of the photograph right has the exclusive right to control a work by making it available to the public. Publishing a photo in a newspaper’s online version constitutes communication to the public, which is one of the ways of making something available to the public. Under established EU case law, a work is communicated to a new public in violation of the rightholder’s rights when a protected work is communicated to a new public, meaning a public which the holder of the copyright did not take into account when they originally gave permission for the communication of their work to the public. It follows from the legal praxis of the European Court of Justice that posting a photograph published elsewhere on the internet on a different website constitutes communication to a new public.

The reasoning behind the decision of the Court of Justice is clear. Any other interpretation would weaken the rightholder’s chances of controlling their work. Such publication of the photo on another website differs from, for example, the practice of linking to the photo, which is often considered permitted: if the linked photo is removed from its original location, it is simultaneously removed from the pages which have been linked to the original location of the photo. Then again, if a copy of the photo is published on another website, as occurred in the case of Iltalehti and the well-known athlete, the copy will stay there even if the rightholder removed the photo from the original website. In such a case, the rightholder will no longer be able to decide on their photograph’s communication to the public. This being the case, if publishing a screenshot on a different website were considered to be permitted, it would weaken the exclusive right belonging to the rightholder.

Now even the Market Court has confirmed that publishing a screenshot of a photo on a paper’s website constitutes communication of the photo to a new public, and thus infringement, as defined in the legal praxis of the European Court of Justice.

The cases do not concern linking – the permissibility of linking has not yet been tested in Finland

Some parts of the press have got into the habit of reporting on social media posts of public figures with the aim of tempting the readers to click on an article in the hope of seeing the photos. Usually the press employs this clickbaiting technique when using linking and, more specifically, embedding, in which they only link to the social media publication of a public figure instead of publishing a screenshot which they then would communicate to the public through their own website.

These decisions of the Market Court did not address the techniques of linking or embedding. Iltalehti and Ilta-Sanomat had chosen to publish a copy of the photo on their website instead of linking to the relevant publication. This method had presumably been chosen because the original publication had taken place in Instagram Stories in which the published photos and videos are available for 24 hours, after which they disappear. If the tabloids had only linked to the publication in question, the link would have only worked for a while and the photo would only have been available to the readers of the online paper for 24 hours after the original publication. By instead copying the photo and publishing such copy on the website, it would be permanently available to the readers.

In Finland, there is no case law on the permissibility of linking as yet. The European Court of Justice has addressed the question of embedding in relation to the YouTube service. The decision in question cannot be used to draw the direct conclusion that all kinds of linking is permitted because the matter is yet to be tested in a Finnish court.

Respecting rights does not restrict freedom of speech or editorial decision-making power

Both Alma Media Suomi Oy and Sanoma Media Finland Oy claimed that accepting the athlete’s claim would mean that freedom of speech and editorial decision-making power are being restricted. This is not what the matter is about, however.

The press is free to publish articles even on similar events published in social media also in the future. The decisions thus do not restrict the press’s right to publish articles on corresponding events. The question is only about whether it is permitted to publish a photograph protected by copyright law without permission.

In its decisions, the Market Court specifically stated that the prohibitions it imposed do not limit the freedom of the press, falling under the freedom of speech, of Iltalehti or Ilta-Sanomat or determine what kind of editorial content they can create or publish in the future.

What do the decisions mean?

The decisions are legally significant since a question like this has never been brought before a court of law in Finland. This was the first time when a Finnish court addressed the press’s quotation right and the definition of a ‘current event’, photo citation and communication of a work to a new public. The decisions can thus probably be considered to have significance as a precedence. The decisions are also interesting from a European perspective, even though judgments of national courts do not have any direct effect on the decisions of the courts of other countries.

The decisions of the Market Court strengthen the rights of the holders of copyrights and photograph rights. The decisions are significant not only for the athlete in question but also for other public figures and, for example, Instagram influencers – it should already have been clear that other people’s photos cannot be used without their permission, but after these decisions there should be no doubt about it.

The decisions are probably significant also for the future operation of the media. Especially tabloids tend to throw together so-called “news” about the social media updates of celebrities or social media influencers and publish a photo published in connection with such social media update. Even though taking a screenshot and publishing it to a new audience is technically possible, it may not necessarily be permitted from a copyright perspective. It is clear on the basis of the decisions of the Market Court that even though copyright law enables the inclusion of published, related photos in a newspaper when describing a current event, there is a certain threshold an event must cross in order to be considered a current event. According to the Market Court's decisions, this threshold is not crossed when a public figure posts a photo in social media. This means that even though it is still permitted to report on the event as before, it does not constitute such a significant news event which would permit the use of the photos without the rightholder’s permission.

Thus, these Market Court decisions will hopefully change the press’s way of making news out of celebrities’ social media publications without considering their copyright. In future, the press will thus have to take the copyrights and photograph rights of public figures even more carefully into account when reporting on them.

The decisions are a welcome clarification of the purpose of the law, especially with respect to the concept of a current event. If a social media update of a celebrity were considered to constitute a current event, this would mean denying photographs of celebrities rights under copyright law. This cannot have been the legislator's will or intention. The Market Court decisions hence are very important in terms of where the line is drawn, and they will hopefully have far-reaching effects. The decisions bring security to rightholders whose rights are unfortunately easy to infringe in a world that’s becoming increasingly technological.

The decisions are not yet final and can be appealed to the Supreme Court if the Supreme Court grants leave to appeal.

Eversheds Attorneys Ltd. represented the athlete in these cases. More information is available in the news published on our website.

Article by Kati Rantala and Sara Väyrynen.