Claim for use of a photo: what to check before responding

The situation usually arises unexpectedly: an image is taken from an open source for a website, social media or a commercial publication, and after some time a letter with a demand arrives. It names the author, the object and the consequences, but supporting documents are not always attached. One has to deal with it for the first time, and mistakes at this stage carry over into court.

The article examines who is entitled to send such a claim and on what basis, what documents are attached to it, whether it is mandatory before court, and which deadlines and demands to look at. It separately covers the step-by-step review of the claim, cases of free use of a photo and the rules for drafting a response.

Claim for use of a photo: where to start the review

A claim for use of a photo is a written demand by the rights holder to the person who posted the image without permission. It is sent by the author, the photographer, the rights holder under a contract or a representative. The basis is the Law of the Republic of Kazakhstan on Copyright and Related Rights. Such a pre-trial claim usually contains a demand to stop the use, delete the material and settle the dispute.

On receiving the claim, record the date of receipt and keep the document with its attachments. Establish where and when the image was posted and who uploaded it. Do not delete the materials or the correspondence. Respond in writing, setting out your position.

• Record the date and method of receipt of the claim, keep the document and its attachments.
• Establish where, when and by whom the disputed image was posted.
• Check whether there is the author's permission, a contract or another basis for publication.
• Preserve the correspondence, source files and data about the author of the photograph.
• Prepare a written response to the claim setting out the position.
• Determine who is responsible for the publication: the recipient itself, an employee or a contractor.

Who is entitled to send a claim for the use of a photo and on what basis

A claim may be sent by the person who holds the exclusive right to the photograph. This is the author — the photographer who created the image: photographs are protected as works, the right arises by the very fact of creation, and to send a claim it is enough to confirm authorship.

If the exclusive rights have passed under an author's contract on the transfer of exclusive rights, the claim is sent by the acquirer of the rights. Under an author's commission contract the photographer retains personal non-property rights, while the exclusive right may belong to the customer. A trustee is also entitled to bring claims in the interests of the right holder.

• The author of the image is the individual who created the photograph through creative effort.
• A photographer under an author's commission contract, if the exclusive right has not been transferred to the customer.
• The right holder under an author's contract on the transfer of exclusive rights.
• A trustee or an organisation for the collective management of property rights — within the scope of its powers.
• A person who has acquired the exclusive right by way of universal succession.
• The author — as regards the protection of personal non-property rights, irrespective of the transfer of the exclusive right.

What documents must be attached to a claim for the use of a photo

A claim for the use of a photograph relies on a set of documents. Copyright in Kazakhstan is governed by the Law of the Republic of Kazakhstan on Copyright and Related Rights, and already at the pre-trial stage it is important to show that the claimant is entitled to protect the specific image. The attachments to the claim confirm that the demands are well-founded and become the evidential basis for the court.

Rights to a photo are confirmed by contracts: an author's contract, a contract on the transfer of exclusive rights, a licence or an employment contract, if the image was created by an employee. Where rights pass along a chain, all its links are attached, otherwise the defendant will argue that the claimant is not the proper party. A copy of the image in the source file with metadata links the object of the claim to the publication on the infringer's website.

Pre-trial claim for a photo: is it mandatory before court

In disputes over the use of photos the pre-trial procedure is not mandatory: neither the Civil Procedure Code nor copyright legislation establishes it. Images are protected as works irrespective of their artistic value, and the dispute is heard under the general procedure. A pre-trial claim is a right, not an obligation of the right holder.

It becomes mandatory if the parties have included a condition on the claim procedure in a contract (licence or author's contract), or if the dispute arises from a contract for which the law expressly provides for mandatory settlement. If the infringement is not connected with a contract, the court will accept the claim without a pre-trial claim.

• Whether there is a clause on the claim procedure in the contract with the defendant.
• Whether the dispute arises from a contract or from non-contractual use of the image.
• Whether a mandatory pre-trial procedure is established by law for the specific type of dispute.
• Whether the limitation period is expiring and whether it requires suspension.
• Whether the rights to the photograph and the fact of its use by the defendant are confirmed.
• Whether the addressee of the claim and the method of its delivery with confirmation of receipt have been determined.

Deadlines in a claim for the use of a photo: what to look at

A claim for the use of a photo usually contains a deadline for voluntary settlement: the date by which a response or payment is expected. It is set by the right holder; the law does not fix a deadline. Without a specified deadline, it is reasonable to focus on the time sufficient to receive the letter and prepare a reasoned response.

The response deadline is also set by the claimant: there is no mandatory pre-trial procedure for copyright disputes in Kazakhstan, and missing it does not lead to dismissal of the claim but to the court stage. Copyright is regulated by the Law of the Republic of Kazakhstan on Copyright and Related Rights, and disputes are considered in the general procedure.

It is important to compare the date in the claim with the limitation period: the general period is three years from the moment when the right holder learned or should have learned of the infringement of their right. A claim does not interrupt or extend the limitation period, and there is no need to wait after the letter.

• what response or payment date is stated in the claim and how it relates to the date of receipt
• whether a deadline is stated at all or is implied
• whether the text contains references to the date of the infringement and the moment when the claimant learned of it
• whether the limitation period for the stated claim has expired
• whether evidence of the date of receipt of the claim has been preserved
• whether the deadlines in the claim match the deadlines stated in the annexes

A claim is not yet a dispute but an exchange of positions: a careful review of the documents often shows that some of the demands are unsubstantiated or made by the wrong person.

Demands in a claim for the use of a photo: what is most often requested

A claim for the use of a photograph begins with the statement that the image is protected as a work regardless of its artistic value, and use without the right holder's consent is unlawful. The demands are built around remedying the infringement and compensating losses and depend on how the image was used and what the claimant intends to obtain.

Most often, the demand is to delete the photo: remove it from the website, publication, banner or product card and confirm deletion. Alongside this, a demand is made for a retraction or attribution of the author if the image was distributed with distorted information. A separate item is compensation for use without a contract.

• delete the image and stop its further use
• publish a retraction or indicate the author and source
• pay compensation for the period of use without a contract
• conclude a contract setting out the terms of use
• provide a report on the methods and scope of distribution of the image
• confirm compliance with the demands in writing

Comparison of positions: a claim for the use of a photo and the response to it

A dispute over an image comes down to counterarguments: the claimant proves the use and the scope of rights, while the recipient looks for a basis on which there was no use or the use was lawful. The legal framework is set by the Law of the Republic of Kazakhstan on Copyright and Related Rights: protected works, personal non-property and property rights, cases of free use and the term of protection.

Competent objections to a claim for a photo are built on analysing each element of the demand: who the author is, whether the property right has been transferred, whether the image is identical, and where and how it was posted. If at least one element is unsubstantiated, the demand loses its basis.

It is convenient to assemble a response to a claim for the use of a photo using the scheme 'claimant's argument — recipient's counterargument — what confirms it'. Typical pairs are summarised below.

Main arguments against a photo claim:

• use in cases expressly named in the law — quotation for scientific, polemical, critical and informational purposes, illustration for educational purposes — with indication of the author and the source;
• quotation to the extent justified by the purpose, including reproduction of the image as an illustration;
• exhaustion of the right to distribute — only for copies lawfully placed into civil circulation by way of sale; it does not extend to posting on the internet;
• expiry of the term of protection of economic rights;
• unprotected content: official documents, state symbols, works of folk art;
• disproportionality of the amount claimed: when determining compensation, the court takes into account the nature of the infringement, the degree of fault and the scale of use.

The table is indicative: the set of arguments depends on the type of image, the method of publication and the terms of the contract with the author.

How to check a claim for the use of a photo: a step-by-step breakdown

A claim for the use of a photograph comes with the image attached and an indication of the rights holder, so the first step is to compare the image with the original file: whether the frame, cropping, colour correction and resolution match. Alteration does not remove protection: photographs are protected as works regardless of artistic value, and alteration requires the author's consent.

Next, check the file metadata: EXIF may contain information about the camera, the date of shooting and the processing software, while the history of publications on the website and on social media shows when the image appeared on your side and where it was taken from. Save screenshots of pages with dates, drafts and correspondence with the designer or contractor if the material was prepared by someone other than an employee. This is how verification turns into the collection of evidence.

• Compare the disputed image with the original file and its versions: cropping, colour, resolution.
• Examine the file metadata and the history of publications: dates, sources, screenshots of pages.
• Bring up the contracts, briefs, acceptance certificates and correspondence with the photographer or contractor.
• Determine your role: website owner, agency, employee or intermediary.
• Check whether the image in the claim matches the one actually used.
• Preserve the evidence and prepare a reasoned response within the established deadline.

Free use of a photo and a claim: when the demands are unfounded

The Law of the Republic of Kazakhstan on Copyright and Related Rights permits the use of another person's image without the rights holder's consent if the work was lawfully made public and the purpose of referring to it is justified. In that case, the author's consent and remuneration are not required.

Quotation is lawful for an informational, scientific, polemical or critical purpose — to the extent justified by that purpose, with an indication of the author and the source. An illustration in educational or news material falls under this regime as long as the image does not become an independent subject of display. News use is permitted in a review of current events where the display is driven by the event itself. It is not permissible to pass off someone else's image as your own or to use it in commercial advertising without a contract. If the material falls under these grounds, the rights holder's claim may prove unfounded: an examination of the circumstances of publication shows whether consent was required.

• Indication of the author and the source of borrowing
• Use only of a lawfully made public image
• Compliance with the extent justified by the purpose of quotation
• Informational, scientific, polemical or critical nature of the purpose
• No passing off of the image as one's own or use in advertising

Appendices to the table: evidence in a claim for the use of a photo

Evidence in a claim for a photo must show that a specific image has been published and is accessible to an unlimited number of persons. Photographs are protected as works regardless of artistic value; what matters is the very fact of use. Each piece of evidence ties the image to a page, a date and the owner of the resource.

Recording begins with an inspection of the page. A notarial inspection of a website fixes the content of the web page at the time of the request: the address, the date, the reproduction of the image and the absence of any indication of the rights holder, and is used as independent evidence in court.

• Notarial website inspection protocol — records the page, image, date and address at the time of inspection.
• Screenshots with the date and page address — confirm publication, but need to be tied to the source.
• Archived copies of pages — show that the image was available during a certain period.
• Contracts with the author or photographer — confirm the basis for holding the rights.
• Correspondence between the parties — reveals the circumstances of the file transfer and the reaction to the claim.
• Image examination — establishes that the disputed photo and the original are identical.

Every piece of evidence is assessed as a whole; a single screenshot without a link to its source is weaker than a notarised inspection and an archive.

Reply to a claim for the use of a photo: how to draft it and what to take into account

A reply to a claim for the use of a photo is a written document by which the addressee sets out its objections and position before any possible court proceedings. It must not be drafted in a way that reads as an admission of debt: do not confirm the infringement, do not agree with the amount, do not promise payment. Copyright is governed by the Law of the Republic of Kazakhstan on Copyright and Related Rights, and the arguments are built on its provisions on lawful use, the term of protection and ownership of rights.

Structure: an introductory part with the details of the claim, a description of the disputed use, objections on the merits, and a conclusion. The descriptive part states where and how the image was posted, who uploaded it and on what basis. The objections address each of the claimant's arguments: whether it is supported by documents, whether the claimant holds rights to the object, and whether the pre-action procedure has been observed, if it is provided for by the parties' contract.

• Correspondence between the details of the claim and the reply
• References to the provisions of the Law of the Republic of Kazakhstan on Copyright and Related Rights
• Absence of wording that could be read as an admission of debt
• Attachment of documents supporting your arguments
• A method of dispatch that allows confirmation of receipt by the addressee