What are the rules for using images or photographs found on the internet?

Who, when creating their website or other marketing tool, did not ask themselves how to make the visual more attractive by including photographs, videos, or even sound? The firm itself was also confronted with this problem when creating the website you are currently viewing.

Finding media or resources on the Internet, randomly, and integrating them into your creations is not a recommended solution. The same goes if you absolutely want to integrate the work of your favorite artist without his agreement. Indeed, these creations are probably subject to copyright classical and it is not allowed to use it without permission of the author. Such use would constitute counterfeiting and would be subject to criminal sanctions.

It is for such use that the public domain and type licenses Creative Commons are particularly useful. They allow you to obtain adapted licensed media, whose conditions of use correspond to your needs.

To understand these concepts, it is useful to recall the scope of copyright, before discussing the term of protection, and finally the possibility for the author to put the work into the public domain before the expiry date of legal protection.

What are the rights of the author of the photographs?

First of all, it is necessary to recall the distinction between the moral right of the author and the moral right of the author and the property right.

The moral rights of the author include the following elements and cannot be transferred pursuant to articles L121-1 and following of the Intellectual Property Code :

• Right of disclosure: the right to choose how the work will be revealed to the public and how it will be used;
• Paternity right: the right to be recognized as the author of the work or to remain anonymous, according to the author's choice;
• Right to respect for the work: the work must not be modified by a third party in a way that is likely to harm the will of the author;
• Right to withdraw and repent: the right to end the exploitation of the work, including when exploitation rights have been granted.

Property or exploitation rights, which may be transferred, include the following elements, pursuant to articles L122-1 and following of the Intellectual Property Code :

• Right of representation: the right to communicate the work to the public by any process;
• Right of reproduction: the right to record the work on a material medium, by any process;
• Resale right: the right to benefit from the proceeds of any subsequent sale of the work;
• Distribution right: the author chooses how his work will be distributed.

Property law allows the author to decide how his work will be used, and is therefore at the heart of the problem of the use of media, by third parties, on channels that have not been previously authorized.

The term of protection of works under copyright

Moral rights are perpetual and can be exercised even when the work has fallen into the public domain. The objective of this rule is to allow the author, or his beneficiaries, to protect the spirit of the work and to prevent it from being distorted.

The term of protection of the work therefore only concerns economic rights.

THEarticle L123-1 of the Intellectual Property Code provides that the work is protected for the duration of the author's life, and for seventy years after the author's death.

At the end of this period, it is possible for a third party to use the work, provided that the moral rights of the author and the rights holders are respected.

In practice, however, recent works cannot be used without authorization from the author, when they are placed under the classical copyright regime.

Use of Creative Commons licenses

The rules set out above can be problematic when you want to use recent or modern media in your marketing materials.

However, practice has developed solutions to this problem, which are more adapted to digital needs.

Indeed, specific licenses, plus well known in the field of software law but also applicable to copyright, were created in order to allow authors to make their works available to the greatest number of people, setting aside economic rights.

This is the case, for example, with some licenses. Creative Commons, Like the licenses CC-Zero (or CC0), CC-BY, CC-BY-SA and CC-BY-ND.

The CC-0 license represents a virtual public domain in that it allows authors to relinquish their copyright to the extent permitted by law. In this case, only moral rights continue as long as they are inalienable.

The other licenses mentioned have in common that they authorize commercial use, with different degrees of autonomy in use (mandatory citation of the author, authorization to modify the work, derivative works to be shared under the same license). They are to be analyzed according to your needs.

The licenses Creative Commons are not the only ones to allow such use, but they are the best known in artistic terms.

The choice to place works under this type of license is a philosophical choice on the part of the author, which in no way deprives him of the possibility of choosing one day to place his works under different regimes.

Various websites highlight and provide free service to this type of work, and will allow you to enrich your content while respecting the rights and wishes of the authors. The works presented are generally accompanied by their license of use, to which your use should be adapted.

But of course, nothing prevents you from choosing to have a work subject to common law appear on your media. However, in this case, it will not be possible to avoid negotiating a user license. A difficult choice!