A hefty damage claim for a photo on your website: are you the victim of legal abuse?

Did you use a photo for your company website and suddenly receive a demand letter with a sky-high claim for damages? A judgment of the court of appeal of Ghent of 20 January 2025 confirms that demanding exorbitant fees for an online copyright infringement can amount to an abuse of law. This abuse can lead to a significant reduction in the ultimate damages.

The facts: from a travel photo to a lawsuit

A photographer found that the Belgian media group Roularta used one of his photos, an image of the Millau viaduct, without permission in an online article on the website femmesdaujourdhui.be. Through his lawyer, the photographer sent a formal notice demanding the immediate removal of the photo, along with damages of no less than € 19.656,00. This amount was based on the rates of an entity called OnLineArt.

Roularta immediately removed the photo and expressed its willingness to reach an amicable settlement for reasonable compensation. The media group, however, disputed the sum demanded, pointing out that the photographer had not only failed to provide proof of his copyright, but had also failed to demonstrate why the photo was original and thus enjoyed copyright protection. The photographer did not respond to the request for consultation, stuck to his lofty claim and eventually went to court.

Appeal court decision

In its judgment of 20 January 2025, the Ghent Court of Appeal upheld the decision of the Ghent Enterprisel Court. Although the copyright infringement on the photograph (considered original in this case) was established, the court ruled that the photographer had exercised his rights in a manifestly unreasonable manner. The court qualified his conduct as abuse of law.

The main reasons for this were:

1. The original reminder did not comply with the postulate: the photographer provided no evidence of his authorship or of the originality of the work.
2. The damages claimed were disproportionately high and based on OnLineArt's unauthorized and non-transparent rates.
3. There was no willingness to make a serious attempt at an amicable settlement, despite Roularta's outstretched hand.

As punishment for this abuse of law, the court significantly moderated the calculated damages to a fraction of the original claim. In doing so, the court rejected the OnLineArt rates and used the market-based rates of the in Belgium recognized collective management organisation SOFAM as the basis. The calculation proceeded as follows:

1. Base rate: The SOFAM rate for a photograph on a publicity site was set at €159.64.
2. Increase for duration: This amount was increased by 50% due to the period the photo was online, bringing the licence fee to € 239,46 .
3. Compensation for infringement: On top of that came an increase of 100% (+ € 239,46) for use without permission (violation of property rights).
4. Moral damage: A further increase in 50% (+ € 119,73) was awarded for not mentioning the photographer's name (violation of moral rights).
5. Subtotal: This brought the total calculated damages to €598.65.
6. Sanction for abuse of law: Because the photographer abused his right, the court applied a reduction of 20% to the total amount (- €119.73).
7. Final amount: € 598,65 – € 119,73 = € 478,92.

Legal analysis and interpretation

This ruling is fully in line with a series of similar rulings by the Antwerp Court of Appeal in so-called "PIXSY/OnLineArt" cases. The case law thus provides a clear dam against the practices of "copyright trolls. These are parties who professionally and structurally enforce copyrights for the primary purpose of collecting fees far in excess of the usual license fees.

A crucial element in these cases is the consistent rejection of the OnLineArt rates used by the plaintiffs. The Belgian courts completely override these rates because OnLineArt in Belgium is no recognized collective management organisation , the rates are not publicly consultable and they are not representative of the Belgian market. Instead, they use the rates of recognized management companies, such as SOFAM, as a reasonable starting point for damage assessment.

The exercise of a right becomes abuse when it is done in a manner "manifestly beyond the limits of the exercise of that right by a prudent and thoughtful person." In this case, the court found that the photographer did not act like a normally prudent person. Systematically claiming exorbitant amounts, ignoring reasonable requests for consultation, and inadequately substantiating one's own claim at the pre-litigation stage all combine to form a pattern labeled as abuse. The penalty for abuse of law is not the loss of the right itself, but the reduction of that right to its normal proportions. In the context of compensation claims, this means that the court may reduce the compensation to be awarded. In this judgment, the court applied a reduction of 20% to the already calculated reasonable damages. In similar Antwerp cases, the discounts were as high as 25% or 50%.

What this specifically means

• For businesses and website owners: If you receive a demand letter, first thoroughly analyze the claim. Check whether the claimant proves his rights, whether the photo is original, whether you may have a license, and whether a statutory exception applies. If the claim seems unjustified, you can dispute it with reasons. If the claim seems justified, it is wise to remove the image immediately to limit damages. In any case, do not be intimidated by excessive claims.
• For photographers and authors: You have the right to take action against infringement of your copyright. However, this ruling shows that the way in which you exercise that right is crucial. Provide a properly substantiated notice of default, be prepared for constructive consultation, and use reasonable and market-based fees. A too aggressive approach can come back like a boomerang and significantly reduce your ultimate compensation.

FAQ (frequently asked questions)

What should I do first if I receive a claim for compensation for a photograph?
Analyze the claim critically. If you are convinced that the claim is unjustified (because you have a license, the photo is not original, etc.), then you can reject the claim with reasons. When in doubt or if the claim seems justified, a good strategic move is to remove the photo to stop the duration of possible infringement. It is strongly recommended to seek legal advice from a attorney specializing in copyright law before acknowledging liability.

What is reasonable compensation?
A reasonable fee is often based on what a normal license would have cost for the use in question. Belgian courts use the fees of recognized CMO's such as SOFAM as an objective and reliable reference point, not the private and often unrealistic fees of foreign entities.

Can I be required to pay the full, high claimed amount?
No. If the compensation claimed is excessive and the method of collection aggressive and unreasonable, a judge may rule that there has been an abuse of law. In that case, the judge will estimate the compensation itself at a reasonable amount and may even reduce it as a penalty.

Conclusion

Belgian jurisprudence draws a clear line in the sand: copyright is not an instrument of unreasonable enrichment. While a copyright infringement entitles a company to damages, enforcement must be proper and proportionate. This ruling by the Ghent Court of Appeal provides important guidance for companies facing aggressive damage claims and emphasizes the importance of reasonableness and dialogue.