Photo copyright: the importance of originality and the burden of proof in online publications

Any photographer or journalist who believes that their copyright be infringed by an online publication, you face a significant burden of proof. The mere fact that you took a photograph is not sufficient for copyright protection; you must specifically demonstrate the free and creative choices that make the photograph original and prove that you still hold the relevant exploitation rights. In a ruling of the Ghent Court of Appeal of March 16, 2026, a claim for damages was rejected in its entirety because the plaintiff did not meet this so-called duty to present evidence.

👉 transparency disclaimer: our lawfirm assisted Ghent University in this case.

The facts

A photojournalist had in the past supplied 18 photographs to an educational publisher (Publisher De Boeck). These images were used to illustrate two paper work packages (the so-called CLIM methodology) published in 2006 and 2007.

Years later, in 2016, the University of Ghent, which had helped develop this methodology, posted digital scans of the complete workbooks online on its website free of charge. The photographer argued that he had granted the publisher at the time only a one-time reproduction right for paper workbooks and certainly not permission for online publication. He claimed material and moral damages of over 94,000 euros from the university for infringement of his copyright.

The court's decision

The Ghent Court of Appeal ruled against the photographer and dismissed the claim in its entirety.

The burden of proof: why a ‘journalistic photograph’ is not automatically protected

An important point in this ruling is the affirmation of the author's burden of proof. The court emphasizes that for copyright protection, two elements must be cumulatively present:

1. The object must be its own intellectual creation.
2. The author must demonstrate that the work reflects his personality through free and creative choices in its creation.

The photographer argued that he used a specific technique, the so-called ‘V-angle,’ and emphasized the social value of his work. However, the court ruled that:

• The use of a photographic technique by itself does not demonstrate originality.
• Copyright does not protect ideas, thoughts or the journalistic message, but only the concrete form of expression.
• For each photo, the plaintiff should have clarified what choices he made in the preparation phase (staging, lighting), when taking the photo (angle of view, settings) or in post-processing.

Because the photographer failed to do so, it was ruled that the 18 photos did not meet the originality requirement.

The transfer of rights: the danger of missing contracts

Even if the photos were original, the claim ran into a second problem: the burden of proving title.

Although the photographer's name appeared in the colophon of the folders, the same colophon contained a caveat that all rights belonged to the publisher. According to the court, this creates a factual presumption that the the exploitation rights had been transferred to the publisher.

The photographer claimed that his license was limited to hard copies, but could not produce a written contract to substantiate this. The court here applied the rules of the Civil Code:

• Whoever appeals to another must prove the facts on which it is based.
• If a party refuses to cooperate with the evidence (by not showing contracts, for example), the court may draw adverse consequences.

The court decided it was likely that the rights granted included digital distribution of the scanned folders.

Legal analysis and interpretation

This ruling goes to the heart of copyright law, specifically concerning the originality requirement and the rules of evidence in the transfer of property rights.

The originality requirement (originality)

In accordance with the case law of the Court of Justice of the European Union (including the judgments Cofemel and Painer), a photograph is copyrighted only when it is its own intellectual creation reflecting the author's personality, expressed through “free and creative choices.” Ideas or particular techniques (such as a specific camera angle) are not, by themselves, protected. The plaintiff must concretely indicate what specific choices he made in the preparation phase (staging, lighting), in the shooting (camera setting, atmosphere) or in the editing phase. If the plaintiff fails to do so, he violates his duty to propose (in accordance with Article 870 Jud.C. and art. 8.4 of the Civil Code and the court may reject the protection.

Evidence of transfer of rights to third parties

When contracting with an author, Article XI.167 of the Code of Economic Law (CEL) requires a strict, written proof of the transfer. However, this case shows an important nuance: the university was a third party with respect to the contract between the photographer and the publisher. For a third party, the more lenient rules of evidence of Article 8.14 CC apply. The university could rely on ‘factual presumptions’ to make the transfer to the publisher plausible. Because the photographer refused to cooperate with the evidence (by withholding the license contracts), the court deduced a negative factual presumption to the detriment of the photographer, in accordance with the duty to cooperate under Article 8.6(1) CC.

What this specifically means

• For photographers and other creative professions: An invoice with the vague statement “for publication” is a risk. Make sure your terms and conditions or licensing contracts delineate crystal clear for what media (print, online, social media), for what territory and for how long the rights are ceded. In addition, document your creative process so you can substantiate the originality (free and creative choices) of your work in the event of a dispute.
• For publishing houses, educational institutions and businesses: When digitizing old paper archives, be vigilant. Check colophons and original contracts with freelancers. If you can prove that the original publisher acquired all rights (for example, through an ‘all rights reserved’ clause in the book work), you are in a stronger position against late claims, especially if the claimant refuses to make the initial agreements transparent.

Frequently Asked Questions

Are all photos automatically protected by copyright?
No, a photograph is only protected if it is ‘original. This means that as the creator, you must be able to show that you made free and creative choices (such as lighting, angle of view, editing or staging) that reflect your personality.

Can a specific technique, such as a particular camera angle, be copyrighted?
No, the mere application of a well-known or general photographic technique does not in itself demonstrate originality. Indeed, copyright does not protect ideas or techniques, but only the concrete, original form of expression given to them.

Can someone just post books with my photos online?
This depends on the agreements with the original publisher. If you have assigned your rights in full or granted a broad license to the publisher, and the university has permission from that publisher (or the law allows it), this may be lawful.

What if I don't have a written contract from my photo assignment?
Between professionals, proof of an assignment can be made by any means of law, including factual presumptions such as entries in a colophon or years of silence. The absence of a writing often works to the disadvantage of the party who must prove the restriction of rights.

Conclusion

A successful copyright infringement claim in Belgium requires more than simply proving that you are the creator of an image. You bear the strict burden of proof to substantiate both the required originality of the work and the concrete scope of the license agreements. Without clear written contracts, you run the risk of judges reverting to factual presumptions that turn out to your disadvantage.