“Quoting” of photographs

Legal possibilities for the use of photographic recordings (and parts thereof)

Copyright fundamentals. When is a work protected?

In the weekend performance of the three husky-voiced tenors, a question arose regarding why articles published in the press can be quoted without consent. Conversely, is consent required for the use of photographic recordings featured in the article? Why can an article be freely quoted, and why can a photograph or a part of it not be freely used?

First of all, for understanding, copyright basics in brief. Both an article and a photograph can be a copyrighted work if they possess an individual, original character. Copyrighted works are protected by law (Act LXXVI of 1999 on Copyright, “Szjt.”) by granting various rights to the author. These rights can be 1) moral rights and 2) economic rights.

A moral right, for example, is that the author’s name be indicated in connection with the work (right to be named). As well as the right that the work should not be altered, distorted, or mutilated. The latter means the protection of the integrity of the work, the author’s right to the integrity of the work.

Free use in the press. Text vs. Photo.

Based on the economic rights belonging to the author, the general rule is that the author is entitled to use the work or to authorize its use. However, there are exceptions to this general rule, such as cases of free use, when the use is free of charge and the author’s permission is not required. In the case of newspaper articles, basically two categories of free use can be considered:

1) There is a public interest in ensuring that citizens are informed as soon as possible about important political and economic news. Therefore, articles and broadcast works related to daily events can be freely used, reproduced, and quoted (unless the author has expressly prohibited this). This category (Section 36(2) of the Copyright Act) naturally applies only to articles, not to images.

However, there is another provision of the Copyright Act that comes into play (Section 37 of the Copyright Act). According to this, for the purpose of reporting on timely, daily events, any work—including a photographic recording—can in principle be used freely and without permission.

This provision, however, can only be applied in a narrow scope; the use must serve exclusively the purpose of reporting on daily events. It is easy to see that a photograph is not necessary for reporting; while a picture is not bad as an illustration, the substantive content will be the text.

Protection of integrity. Why is a picture not easily “quotable”?

2) The other category is quotation. An excerpt can be quoted faithfully to the original, by indicating the source and the author. Quotations can be made not only from literary works but, in principle, from any work, including photographs, as strange as that may sound. The question from the husky-voiced tenor was aimed at why a photograph cannot be “quoted” in the same way as an article?

Until 2021, the easy answer to this was that the Copyright Act explicitly prohibited it (Section 67(5) of the Copyright Act). This would, of course, be a typical lawyerly response—the law prohibits it, so please accept it—which does not provide an answer to the real “why,” so I will attempt a substantive answer.

The reason for the prohibition is that an excerpt of a literary work can be interpreted on its own and published faithfully to the original. In the case of a photograph, “quoting” means altering the work; therefore, it violates the right to integrity. After all, a written text and a picture are of a completely different nature. A text can be condensed so that the message remains unchanged, whereas for a picture, there is no real way to do this.

If I modify a picture by publishing only a part of it, it becomes a different picture altogether. Of course, one could say that if we trim a little from the four corners of a picture, the integrity of the picture remains. But is this true for every picture? Where do we draw the line; what already constitutes distortion? If I delete 5% of the picture, is that still acceptable, but is it also acceptable if I delete 50%? The answer of legal practice to this dilemma was that photographs cannot be freely “quoted” and only parts of them published without distorting the original work. Therefore, the author’s consent is required for use in every case.

Legal turning point in 2021. Can photos be quoted now?

In 2021, the change that occurred was that the aforementioned prohibitive provision (Section 67(5) of the Copyright Act) was repealed. According to the explanatory memorandum of the law, this was because “quotation can be implemented without prejudice to the unity of the work (PZ: including the photograph)”. “Total exclusion” of quotation is not necessary because the right to integrity provides legal protection. Based on this reasoning, consent is therefore not required for the “quotation” of a photographic recording if it does not violate the unity of the work.

Practical advice. Why is publication without permission risky?

Regardless of the above, I would still not recommend omitting the request for consent in the case of press articles. On one hand, quoting is only permitted for the purpose of creating an independent, original work; articles taken over for the purpose of informing the public do not belong here. On the other hand, the question of violating integrity is quite subjective, and omitting consent carries a risk. Thirdly, the regulation is relatively new, e.g. on the website of the Hungarian Intellectual Property Office, the non-effective regulation can still be read today.

If such a case goes to court now, even a minor modification of a photograph without consent would likely be judged as an infringement, in accordance with practice thus far. In ten years, however, it is possible that a completely different judgment would be reached if legal practice shifts in a more permissive direction.