A claim over a photo on your website: what is really owed

The case, in five lines

What is brought

Defence against a claim for infringement of intellectual property rights: the claimant's standing, the classification of the image and the damages calculation under article 140 of the consolidated Act are all disputed.

Before which court

The claim arrives out of court. If it becomes litigation, the case is decided by the Commercial Section of the Tribunal de Instancia (the first-instance court), and that prospect shapes how the letter is answered from the outset.

Deadline

Article 140.3 provides that the action to claim damages prescribes after five years from when the entitled party could have brought it. Uses earlier than that period fall outside the money claim, even if the image remained published.

Who can bring it

Article 138 gives standing to the holder of the rights recognised by the Act. Whoever claims must establish that it is such a holder, whether photographer or assignee, and with what scope, because everything it can claim from you depends on that.

Financial risk

If the matter reaches court and is lost, on top of the damages you may face a costs order and publication of the decision at your expense. Article 727 of the Civil Procedure Act also allows the sums claimed as remuneration to be ordered into deposit.

Before arguing about the amount, argue about who owns the right

Article 138 of the consolidated Act opens the actions to the holder of the rights recognised by the Act. That word governs: whoever writes to you has to be a holder and be able to prove it. In practice that means identifying the photographer, the date the image was taken and the full chain of assignment down to the company now claiming from you, with the territorial and temporal scope of each link.

Mass letters almost never come with that documentation. They arrive with a screenshot of your page, an internal catalogue reference and a figure. Asking in writing for proof of ownership and of the scope of the assignment is not a delaying tactic: it is the first thing a court would require, and the matter often deflates at that point because the agency only manages the image for one territory or for particular uses.

It is also worth checking where the file actually came from. Many images were downloaded at the time from banks offering free or open licences, and that origin is established through the file's metadata, the download date and the site's own history. If a licence existed, the claim is answered with it and not with a negotiation over the amount.

A photographic work and a mere photograph do not protect the same thing

Article 128 governs a situation the claim letters usually ignore: whoever takes a photograph that does not qualify as a work protected under Book I enjoys the exclusive right to authorise its reproduction, distribution and public communication, on the same terms the Act recognises for authors of photographic works. Those are the three faculties, and the provision mentions no others.

The same article adds a time limit of its own, far shorter than that of works: this right lasts twenty five years counted from 1 January of the year following the date the photograph was taken. If the image is a mere photograph taken more than twenty five years ago, the right being invoked against you no longer exists, and that check is one of the first to be made.

The classification is not a technicality without consequences. On it depend the duration of the right, the catalogue of faculties that can be invoked against you and much of the argument about moral harm, which the Act builds around the author and the work. That is why the reply starts by describing the specific image, its making and its origin, and not by accepting the label the claimant attaches to it.

The figure in the letter is not the one the statute sets

Article 140.1 delimits the content of the damages: the value of the loss suffered and of the profit not obtained because of the infringement, plus the investigation costs incurred to obtain reasonable evidence of the infringement. That provision contains no multiplier, no penalty and no reference to the conditions the claimant may publish in its catalogue.

Paragraph 2 offers two criteria, at the injured party's choice. The first is the negative economic consequences, among them the loss of profits suffered and the profits the infringer obtained from the unlawful use. The second is the amount the injured party would have received as remuneration had the infringer sought authorisation to use the right. That second criterion looks at what the claimant actually charges, not at what it advertises.

Within the first criterion the Act places moral harm, which is compensated even without proof of economic loss, and orders it to be assessed by reference to the circumstances of the infringement, the seriousness of the harm and the degree of unlawful dissemination of the work. That last factor is measurable: the actual traffic of the page where the image sat, its position within the site and how long it was accessible are all produced in evidence.

Five years from when they could have claimed, not from when they write

Article 140.3 establishes that the action to claim damages prescribes after five years from when the entitled party could have brought it. In these claims that fact matters a great deal, because agencies track images with automated tools and sometimes find uses published eight or ten years ago, presenting the age as an aggravating factor when it is in fact a limit.

That is why the dates of publication and of removal are documented precisely from the outset, using the site's version history and captures from public internet archives. That timeline decides which part of the money claim is still alive and which has fallen away, and it is a far weightier argument than disputing the figure without a basis.

Who else is liable besides you, and what to do with the photo now

Article 138 widens the circle of liable parties beyond whoever physically publishes: liability also falls on anyone who knowingly induces the infringing conduct, anyone who cooperates with it knowing of it or having reasonable indications of it, and anyone who, having a direct economic interest in its results, has a capacity of control over the infringer's conduct. The provision itself preserves the liability limitations of articles 14 to 17 of Law 34/2002.

That opens an internal route worth assessing where the image was placed by a design or content supplier under an engagement that included obtaining the licences. The claim is directed at you because you are the visible owner of the site, but the final allocation of liability depends on the engagement, on the instructions given and on what was agreed about the materials supplied.

In the meantime the image is taken down and the removal is recorded with a date. Article 138 allows the right holder to seek cessation of the unlawful activity and, beforehand, the urgent protective interim measures governed by article 141, and article 727 of the Civil Procedure Act contemplates the deposit of the sums claimed by way of intellectual property remuneration.

How we run the case, step by step

1. 1

   Removing the image and freezing the evidence of use

   The photograph is taken down and both publication and removal are documented with a certain date, along with the site's version history, the file's metadata and where it was downloaded from, before that data is lost with the first change to the site.

2. 2

   Requiring written proof of ownership

   We reply asking for identification of the author, the date the image was taken and the complete chain of assignment down to the claimant, with its territorial and temporal scope, because article 138 gives standing only to the holder of the rights.

3. 3

   Classifying the image and measuring its age

   We analyse whether the photograph is a protected work or a mere photograph under article 128 and check the date it was taken, because in the second case the right lasts twenty five years from 1 January of the following year.

4. 4

   Recalculating the damages under article 140

   Against the figure claimed we set the calculation the statute allows: negative economic consequences and the infringer's profits, or the remuneration the injured party would have received had authorisation been sought, with the five year prescription removing whatever falls outside.

5. 5

   Closing by agreement or holding the position in court

   With ownership verified, the classification made and the calculation on the table, we negotiate a settlement that definitively closes the claim for that use, or prepare the defence if the agency decides to sue.

The law that applies

• Art. 128 del texto refundido de la Ley de Propiedad Intelectual. Governs mere photographs: whoever takes a photograph or other reproduction obtained by an analogous process which does not qualify as a work protected under Book I enjoys the exclusive right to authorise its reproduction, distribution and public communication, on the same terms recognised for authors of photographic works. That right lasts twenty five years counted from 1 January of the year following the date the photograph was taken. BOE-A-1996-8930
• Art. 138 del texto refundido de la Ley de Propiedad Intelectual. Gives standing to the right holder to seek cessation of the infringer's unlawful activity and damages for material and moral harm under articles 139 and 140, as well as publication of the decision at the infringer's cost. It also treats as liable anyone who knowingly induces, anyone who cooperates knowing of the conduct or with reasonable indications of it, and anyone who, having a direct economic interest, has a capacity of control, preserving articles 14 to 17 of Law 34/2002. It allows the interim measures of article 141 to be sought beforehand. BOE-A-1996-8930
• Art. 140 del texto refundido de la Ley de Propiedad Intelectual. Sets the calculation of damages: the value of the loss suffered, the profit not obtained and the investigation costs incurred to obtain reasonable evidence of the infringement. At the injured party's choice, either the negative economic consequences, including the profits obtained by the infringer, with moral harm compensated even without proof of economic loss and assessed by the circumstances, the seriousness of the harm and the degree of unlawful dissemination, or the remuneration the injured party would have received had authorisation been sought. The action prescribes after five years from when it could have been brought. BOE-A-1996-8930
• Art. 727 Ley de Enjuiciamiento Civil. Lists the specific interim measures a court may grant. Among them, of direct relevance here, are the intervention and deposit of income obtained through an activity deemed unlawful, the deposit of the sums claimed by way of intellectual property remuneration, and the temporary deposit of copies of works or objects deemed produced in breach of intellectual and industrial property rules. BOE-A-2000-323

Each article checked against the consolidated text published in the BOE (the Spanish official gazette).

Frequently asked questions