The fact that the author has provided his unpublished works to a third party does not automatically mean that the author has committed actions aimed at disposing of copyright to this work since the very fact of opening access to files or providing photographic works on electronic media to a third party is not a permission to use copyright.
The Supreme Court of Ukraine came to this conclusion.
Thus, the plaintiff agreed with the company to take a photo of the objects belonging to the defendant, which will later be used by him for advertising purposes. The parties agreed on a fee, photography was carried out and photographic works were created. Subsequently, the photographs were transferred on electronic media to the defendant, but he replied that the photo was of inadequate quality, did not pay the plaintiff, and did not prolong cooperation with him.
However, the plaintiff subsequently discovered that the company was using photographic works that he had created on advertising stands. He turned to the administration of the defendant’s enterprise to receive royalties for the photographs created, but he was denied payment of the royalties. At the same time, the administrator agreed to stop using these photos.
But later, the defendant again repeatedly revealed the use of his works on advertising flyers and in advertising the defendant’s services on the Internet, after which he again turned to the company for the collection of royalties, which was denied.
The photographer filed a lawsuit in court, which established 64 cases of using photographic works of the plaintiff’s authorship in advertising materials advertising the defendant’s activities and on 28 websites on the Internet.
The first instance court partially satisfied the claim:
- forbade the company to use its photographic works without the written permission of the plaintiff,
- recovered in favor of the plaintiff moral damage and monetary compensation in the amount of UAH 2.4 million ($90 thousand),
- ordered the defendant, at his own expense, to publish in the newspaper information about his proprietary and non-property copyright violations.
However, the Court of Appeal overturned the decision of the court of the first instance and dismissed the claim, considering that the plaintiff himself voluntarily disposed of his copyright in the above-mentioned works, knowing the purpose for which the defendant was going to use them, having provided the relevant photographic works to the enterprise.
The case was submitted to the Supreme Court, which upheld the conclusions of the first instance court, satisfied the claim, but reduced the amount of compensation to UAH 100,000 ($4 thousand).