Foreign Infringement of Your Photos?

A troubling issue that surfaces from time to time is what to do when an image from your publication is infringed in a foreign country. Here’s a case from the archives (1993):  The United States Court of Appeals for the Second Circuit, clarified two of the thornier problems, in Itar Tass Russian News Agency v. Russian Kurier, Inc.  These two problems were 1.) which country’s laws apply to the question of copyright ownership, and 2.) which country’s laws apply to the question of copyright infringement.

The Court determined the first issue, as to copyright ownership, by stating that "the law of the country with the closest relationship to the work will apply to settle the ownership question."  Generally, the Court said, this would be the country where the work originated. Of course, however, this pronouncement may require an analysis of the evidence in each case to determine the degrees of the "relationship" to each country.

ACTUAL INFRINGEMENT

The Court then went on to determine the second issue – whose law would apply to determine the issue of copyright infringement – by holding that the law of the place where the infringement took place, controls. Thus, a copyright claim may require application or interpretation of the laws of more than one country.

It is, however, not entirely clear how this test is to be applied in a situation where a photographer creates numerous images in different countries, say on an African photo safari, which are then published without the photographer’s consent by a European magazine, distributed worldwide!

Attorney Joel L. Hecker lectures and writes extensively on issues of concern to the photography industry. His office is located at Russo & Burke, 600 Third Ave, New York NY 10016. Phone: 1 212 557-9600.