Whether you’re a professional photographer licensing your work across borders or a hobbyist uploading your shots online, understanding copyright law for photography in the European Union is essential to protecting your creative rights.
While each EU member state enforces its own copyright rules through national courts, a growing body of European Union-level legislation and court rulings now shapes a shared legal framework. The Court of Justice of the European Union (CJEU) has handed down key decisions that override national misunderstandings and help unify how photography is treated under copyright law.
Yet despite these rulings, many photographers still struggle to claim what they’re legally entitled to—especially when a judge or opposing lawyer is unaware of these binding EU precedents. That’s where this guide comes in.
What This Guide on Photography Copyright Law Is (And Isn’t)
This is a living reference guide collecting and explaining the most important EU-level rulings, quotes, and regulations that affect photographers. It’s built by a photographer (me), for photographers like you—especially those involved in copyright infringement claims, whether domestic or cross-border. It does not claim to be complete and if you come across important decisions that are helpful for photographers, please let me know.
This article will grow over time. Each time a new case or regulation comes up that affects photographers in the EU, I’ll add it here—with plain language explanations you can actually use.
Topics covered so far:
- How much can you claim in damages? (Key regulations and decisions on fair compensation and licensing value)
- What is a ‘knowing’ infringer?
- What qualifies a photo for copyright protection?
1. How much damages can you claim for copyright infringements on photographs?
Article 13.
Member States shall ensure that the competent judicial authorities, on application of the injured party, order the infringer who knowingly, or with reasonable grounds to know, engaged in an infringing activity, to pay the rightholder damages appropriate to the actual prejudice suffered by him/her as a result of the infringement.When the judicial authorities set the damages:
(a)
they shall take into account all appropriate aspects, such as the negative economic consequences, including lost profits, which the injured party has suffered, any unfair profits made by the infringer and, in appropriate cases, elements other than economic factors, such as the moral prejudice caused to the rightholder by the infringement;
or
(b)
as an alternative to (a), they may, in appropriate cases, set the damages as a lump sum on the basis of elements such as at least the amount of royalties or fees which would have been due if the infringer had requested authorisation to use the intellectual property right in question.
So, in short, damages can be calculated in three ways:
- Negative economic consequences – think of when you lost a sale because the potential buyer discovered that the work was already stolen and is therefore not interested anymore. Difficult to prove and quantify.
- Unfair profits made by the infringer – how much did they earn because of using your photo? It can be the right course of action in case they sold products with your artwork. Hard to prove for images used on the internet, such as for digital marketing campaigns.
- The fee that would have been due – The most important part of the regulation and what overrules many national laws. Some national laws, such as the Dutch Copyright Act, grant the courts wide freedom to set the damages, and they often take market averages. But art is no commodity. An artwork such as a photograph is one of a kind. There is no market average.
So what matters is whether you have a documented pricing structure—such as a rate card, previous invoices, or licensing history—that establishes the value of your work. Courts can consider such documentation even if your rates are higher than the so-called market average, especially if they reflect a consistent and accepted business practice.
Helpful decisions by the Court of Justice of the European Union in this regard:
- Case C-99/15 – Christian Liffers v. Producciones Mandarina SL
“[The Directive] must be interpreted as permitting a party injured by an intellectual property infringement, who claims compensation for his material damage as calculated, in accordance with heading (b) of the second subparagraph of Article 13(1) of that directive, on the basis of the amount of hypothetical royalties, also to claim compensation for the moral prejudice that he has suffered, as provided for under heading (a) of the second subparagraph of Article 13(1) of that directive.”
➡️ This means, the usual fee mentioned in (b) only covers material damages. On top of that, you can still claim the moral damages mentioned in (a). - Case C-367/15 – Stowarzyszenie ‘Oławska Telewizja Kablowa
“[The Directive] must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, under which the holder of an intellectual property right that has been infringed may demand from the person who has infringed that right either compensation for the damage that he has suffered, taking account of all the appropriate aspects of the particular case, or, without him having to prove the actual loss, payment of a sum corresponding to twice the appropriate fee which would have been due if permission had been given for the work concerned to be used.”➡️ This means the national law can award damages even higher than what is required by the directive.
➡️ This means member states can apply punitive damages (but are not required to).
This is only the fair minimum. Why should an infringer pay less for a photograph than an honest client? Sadly, punitive damages are very rare in Europe.
Before we continue, note that the infringer must have “reasonable grounds to know” that the act is an infringement. What does this requirement mean?
2. Can you use photos from the internet? When does using internet photos become copyright infringement?
- Innocent (they truly didn’t know it was copyrighted)
- Negligent (they should have known)
- Willful (they clearly knew and didn’t care)
- Show the court how a quick 30-second reverse image search would have led them to your website.
- Clearly state on your website that your photographs are copyright protected and require licensing before use.
Directive 2004/48/EC, Article 13, allows compensation from an infringer who acted ‘knowingly or with reasonable grounds to know.’ While there is no specific CJEU ruling requiring reverse image searches, courts interpret “reasonable grounds to know’ to include situations where basic due diligence—such as a reverse image search—would have revealed the author. It is therefore expected that any business, especially in a commercial context, conduct this simple check before using an image found online.
⚠️ Common Myth
“If there’s no copyright mark, it’s free to use.”
✅ Reality
In the EU, copyright is automatic. No mark, no registration needed. If it looks professional, it’s probably protected—and using it without checking could cost you dearly.
3. What kind of photographs are enjoying copyright protection in Europe?
In Europe, works do not need to be specifically registered to enjoy copyright protection. But does it apply to all photographs? At what point can we consider a ‘photograph’ to truly be a photograph?
First, let’s look at Directive 2006/116/EC, commonly known as the Copyright Term Directive.
Article 6
Protection of photographsPhotographs which are original in the sense that they are the author’s own intellectual creation shall be protected in accordance with Article 1. No other criteria shall be applied to determine their eligibility for protection. Member States may provide for the protection of other photographs.
This creates an important minimum standard. The member states may protect more photographs than that. But let’s break it down.
It all comes down to the term ‘original.’ What does it mean that the photo is the author’s own intellectual creation? Thankfully, for this purpose we have some CJEU jurisprudence available:
- Case C-145/10– Painer
In the preparation phase, the photographer can choose the background, the subject’s pose and the lighting. When taking a portrait photograph, he can choose the framing, the angle of view and the atmosphere created. Finally, when selecting the snapshot, the photographer may choose from a variety of developing techniques the one he wishes to adopt or, where appropriate, use computer software.
By making those various choices, the author of a portrait photograph can stamp the work created with his ‘personal touch’.
➡️ This means a portrait photograph in which the photographer can make these free choices is deemed to be ‘original’ and therefore protected.
✅ Quick Originality Checklist
- Why did you choose this location, time of day, and angle?
- What artistic decisions did you make in composition, lighting, or editing?
- Could someone else with the same camera and client instructions have taken a very different photo?
3. How to enforce Copyright in the European Union across borders?
You are a resident of Country A. And the company that stole your photo is another, Country B. What can you do to protect your copyright – and where do you need to do it?
Let’s separate the claim. There are two things you want:
A) You want the Infringement to stop
B) You want to get paid damages for the infringement
Final Thoughts
I hope this guide has helped clarify how copyright law works for photography in the European Union—especially when it comes to damages, originality, and how certain court rulings can support your case in legal disputes.
This article aims to serve as a dynamic resource. As new CJEU decisions come in or more helpful jurisprudence emerges, I’ll be updating the table and sections accordingly.
If you come across any other relevant rulings or have experience using EU copyright law to defend your work, I’d love to hear from you! Drop a comment below or reach out—let’s make this post a practical reference not just for me, but for photographers across Europe.
Good luck protecting your work, and remember: knowing your rights is the first step in defending them.
Check out my in other blog post and link to a podcast hosted by Matt Payne about Photography Copyright Tips and Image Theft.
