The Exception for Current Events

Photographer Dave Walsh filed a lawsuit against LA OPINIÓN S.A. over the economic rights to the photo titled FROOME AND BERNAL, VOLTA CATALUNYA 2019 and the moral right of attribution.

The media outlet LA OPINIÓN S.A. defended itself against the lawsuit by invoking the exception to the exercise of economic rights, which allows copying of newsworthy information without authorization and payment of remuneration (Art. 33 of Law 23 of 1982; Art. 22 of Decision 351).

In resolving the case, the National Copyright Office, acting within its jurisdictional authority, summarized the requirements to apply the exception:

1. Specific subject matter of the work used: the work must fall into categories such as current events, or economic, political, or religious discussion.
2. The work must be published in newspapers or periodicals, or broadcast with the same informational character, and the use must be made by the press in its various forms.
3. There must be no express reservation of the right. This means that this exception can be used as long as the reproduction, broadcasting, or public transmission has not been expressly reserved by the author or rights holder.

Although the Berne Convention and Decision 351 do not explicitly refer to photographs as part of the exception, they can be considered included, not only due to their explicit mention in Law 23 of 1982, but also when the photograph documents an event and provides relevant information about it in a given social context.

In this specific case, the photograph in question was used by LA OPINIÓN S.A. to report on what happened during a stage of the Volta a Catalunya, including the unusual incident between Egan Bernal and Chris Froome.

The photograph had been posted by the plaintiff on the social network Twitter, reporting on the cycling competition.

This post was made without any reservation of rights.

Therefore, the exception to economic rights applies to this case.

Regarding the moral right of attribution, it was observed that the photograph was always published with the photographer's username, leading to the conclusion that the attribution was acknowledged.