Beware of the troll behind the camera

The most fervent fans of Scandinavian mythology and medieval legends know trolls as unfriendly supernatural creatures, but did you know that even trolls have crossed time and evolved into a version 2.0, or even 3.0?

Forget the deformed and frightening creature, the troll has now become a much more banal character, but still as unfriendly.

He has diversified his activities and now finds happiness in intellectual property. And his new hobbyhorse is the defense of copyrights on press agency photographs.

Don’t be mistaken, the troll keeps his malicious spirit and is not so much attached to the defense of rights as to the lure of gain that unfortunate uses of non-rights-free photographs generate.

Indeed, let’s remember first of all that a photograph, in the same way as other works such as novels, paintings, sculptures, can benefit from copyright protection, provided that it is original.

Thus, it is obviously forbidden to copy or download a photograph found on the Internet to use it on one’s own website, even if it is only to illustrate a text and even if the use is not for commercial purposes, otherwise one will be guilty of an act of counterfeiting.

Unfortunately, even the most vigilant graphic designer can sometimes let his guard down and use an image that is not free of rights.

That’s when our trolls come into play. Thanks to the development of artificial intelligence, collection companies will scan the web to identify unauthorized uses of news agency photographs (most of the time) and then serve formal notice to the infringers to pay compensation to the rights holder.

If you refuse to pay, the threat of legal proceedings immediately arises.

If the approach of preserving rights is perfectly legitimate, it appears that in this case the actions of these collection companies are more of an abuse of rights (according to the Advocate General of the CJEU himself) insofar as an exorbitant amount is requested as compensation and that this amount is surprisingly always highly negotiable downwards.

Moreover, this practice can be qualified as abusive since the originality of the photographs is very often lacking and then even the existence of a copyright protection as well.

Thus, we can only call upon you to be very vigilant as for the contents that you recover on Internet and to check that the visuals employed are indeed free of rights for the use that you wish to make of them.

And if you are nevertheless contacted by the collection companies in question, do not make their work easy and do not hesitate to ask for:

• Proof of ownership of the rights claimed,
• The demonstration of the originality of the litigious photograph,

before any other reaction.

If the work in question is really original, negotiate the requested compensation downwards.

In conclusion, contrary to the teachings of Scandinavian mythology, speed and aggressiveness are not the keys to success against trolls. Instead, opt for serious argumentation and negotiation, which should be enough to make them run away.

– Philippe BOHLAND, Industrial Property Attorney and Partner at Mark & Law