A Serbian non-profit Fruškać was recently ordered to pay over $1,000 for doing something most of us do daily. After they were tagged in a photo, they shared it on their Instagram Story straight from the original post. However, they were slammed with a lawsuit for it – and now they have to pay a fine. This case could have implications not only for photographers but all creatives and social media users. And not only in Serbia, but across the world.
What is Fruškać anyway?
First things first – what is Fruškać? It’s a website promoting Fruška gora mountain located near my hometown of Novi Sad, Serbia. For me personally, it’s a place I visit before every trip to the mountain to discover something new I haven’t seen there yet.
It started as a passion project of Novi Sad-based web and graphic designer Nikola Arežina. He started developing the website in his free time, with help from his friends, who would wander around Fruška gora and take photos and data about all the breathtaking places it hides. It grew over the years, and Arežina registered Fruškać as a non-profit, so it would be easier to deal with any official stuff that might come up.
A detail from Fruška gora, © Dunja Đuđić
How it all started
In June 2020, the Instagram page @fkreativnosti (unavailable at the time of writing this) posted an aerial photo of a lake on the mountain Fruška gora and tagged Fruškać. As you probably know, if you’ve opened Instagram at least once in your life, you can share your and other people’s posts to your Story. When your followers tap on the picture, it will lead them to the original post.
That’s what Fruškać founder and president Nikola Arežina did, and the story expired after 24 hours. However, about a month later, Fruškać received a letter before action. It was sent by Marija Milojković, an attorney for photographer Aleksandar Beserminji who took the photo in question. And this is where the saga begins.
The lawsuit and the verdict
The attorney for Beserminji, Marija Miljković, first contacted Fruškać through their Facebook page, asking for an email where she could send a letter before action. She immediately got an automatic “out of office” reply that most of us have on our Facebook pages. She replied to it, “All right, then we will take legal action straight away without the letter before action.”
Milojković did send the letter before action eventually, claiming that resharing her client’s photo was a breach of copyright. She requested either the “standard” 100,000 Serbian Dinars (~$910 USD) in damages or the settlement under the following conditions:
- Fruškać needed to provide Beserminji with 20 Stories and 10 posts by the end of 2021 and tag the photographer with each of them, along with the link to his Instagram page
- Beserminji would provide Fruškać photos that fit the topic they promote via Instagram direct messages, and they would need to publish them within 48 hours.
Arežina told DIYP that he rejected the proposal and that it wasn’t clear whether the photographer wanted to be promoted on Fruškać or not. A lawsuit followed in 2022, and Arežina went public through a Facebook post (it’s in Serbian, but maybe automatic translation will help you get the gist, at least). “I didn’t download and post the photo, I shared it automatically,” he wrote at the time, “as the authors tag us every day so we would publish their photos and promote both their work and Fruška gora.”
“In this particular case, Fruškać had no benefit. Only the author did, as we promoted his work for free, considering we have more followers. I shared the photo as a Story since sharing was enabled [on the original post], and in that case, Instagram automatically creates a link you can click to see the original post, which tagged the author [in the caption].”
He also shared a video showing what the Story looked like when posted to Fruškać’s Instagram page:
Still, this wasn’t enough for the judge. Three years after the saga began, Judge Violeta Marijanović ruled that Fruškać was due to pay 114,800 Serbian Dinars + legal fees (~$1,050 USD) to Aleksandar Beserminji.
Most people, including myself, agreed with Arežina that this is by no means a breach of copyright. I usually side with photographers, but this seems just absurd. Following this logic, every Instagram user should be sued by hundreds, if not thousands, of people. But can sharing someone else’s photo get you to court? Let’s see.
Does sharing someone’s photo on Instagram story hurt their intellectual rights?
Speaking with Nova S, lawyer Dušan Stojković explained that artists’ intellectual right is, in a manner of speaking, their asset. However, it’s more abstract since it’s not apparent and tangible as physical assets. When you merge this abstract concept with the ease of sharing that we have nowadays – it makes people forget that they can’t just take someone else’s photos. However, he added that he was not familiar with this particular case, so he gave general guidelines. Stojković noted that, no matter how we observe social media and the ease of sharing, the law says that we can share other artists’ work only with their explicit permission.
Arežina pointed out that Serbian laws must catch up with the modern concepts of sharing, reposting, and other social media terms. But considering, for example, that our laws about freelancing date back to 2001 (before most of us had an internet connection), I guess that’s wishful thinking. Stojković added that Serbian judges also need to consider the intention and context of sharing other people’s work: was it done intentionally and for commercial purposes or not. It largely determines the outcome of the trial and the fine, if the judge rules one should be paid at all.
All of this sounds contradictory, doesn’t it? On the one hand, Facebook, Instagram, and other social networks encourage content sharing. They make it easy and accessible and, at the same time, enable users to click on the original source and see the photo, video, or link that has been shared. On the other hand, every law in the world bans sharing other people’s work without credit and/or their explicit permission (there are exceptions, you can read more about them here).
Epilogue
So where do we go from here? I honestly have no idea. The “laws” of social media clash with actual laws, and it’s all left to the judges to determine based on a) their knowledge of social media and b) their willingness to observe the case from all angles. Apparently, Judge Marijanović didn’t let this one slide, even though it perfectly aligns with the laws of Instagram. Arežina told DIYP that this is what he tried to explain to both the judge and Beserminji’s attorney, but his efforts were in vain.
There have been a few cases where photographers sued organizations over embedding their Instagram posts. Don Logan and Stephanie Sinclair lost, but Paul Nicklen won the case. However, I still haven’t heard of anyone suing over sharing a photo directly from an Instagram post to your Story. As I mentioned, this verdict could have implications for all photographers and all social media users in Serbia. And since copyright laws are similar worldwide –the impact could spread across the borders of this county, too.
Since Fruškać is a non-profit, they receive donations through PayPal. And if you’re siding with them, you can support them financially.
We have contacted Aleksandar Beserminji for comment, and we will update the article if we hear back.
Update June 7, 2023:We have heard back from photographer Aleksandar Beserminji and we are sharing his statement regarding the case below.
Aleksandar Beserminji’s statement regarding the Fruškać case
I’ve faced situations on Instagram before where my photos were posted without proper credit. Whenever I discovered this after a few days, I’d politely request the profile owner to give me credit. While it may not have made a significant difference in terms of exposure at that point, most users would usually comply without any issues. However, some users didn’t respond positively to my requests. Consequently, I decided to seek legal assistance to handle such communications and haven’t had any problems since then. It’s important to note that no lawsuits had been filed before the Fruškać case, and everyone involved acted reasonably.
The incident involving Fruškać changed the situation. In response to the lawyer’s warning, they sent a series of unpleasant emails, which I won’t delve into. I’m uncertain whether this reaction stemmed from fear of lawyers, lack of knowledge about copyright, or our proposal for an out-of-court settlement. Our compensation proposal involved Fruškać publishing some of my photos with proper credit, focusing on Fruska Gora. Initially, this proposal didn’t seem problematic, except for the excessive number of posts we requested, which we calculated incorrectly based on misleading information found on the internet.
Regardless of the cause for Fruškać’s reaction, we had hoped for civilized and open communication to resolve the matter. Unfortunately, after several days of correspondence, it became clear that we couldn’t find a mutually agreeable solution. Instead, we were subjected to offensive language and threats. It was disheartening because we hadn’t anticipated such a response.
One of the threats was the scenario that recently unfolded, aimed at discrediting me. Faced with this situation, I had two choices: stay silent and let it pass, or succumb to intimidation. I chose not to back down and accepted the risk. Consequently, we decided to file a lawsuit, which has now been initiated.
Fruškać is currently carrying out their threats and using their followers to spread their distorted version of the “truth,” conveniently omitting details about their own lack of civility. I don’t have much to comment on that, and even if I did, I don’t have many people to share it with since I don’t have a large social media following to tell my side of the story.
Regarding the problematic publication itself, I must admit that I’m not an expert in assessing the extent of copyright infringement. To be honest, it falls into a gray area. However, I firmly believe that if authors do not receive credit and visibility for their work, they are ultimately at a loss.
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