Jul 23, 2026 | Copyright in Photographs: Enforcement Strategies and Practical Applications for SMEs

Copyright in Photographs: Enforcement Strategies and Practical Applications for SMEs

1. In Hong Kong, copyright protection is relatively broad in scope. Under the Copyright Ordinance (Cap. 528), “copyright works” explicitly include photographs. In other words, any person (an infringer) who uses even a single photograph without the authorization of the copyright owner may already constitute copyright infringement. SMEs often possess a large number of product photographs, promotional images, and website visual materials, but frequently overlook the copyright value inherent in these assets, or inadvertently infringe upon the rights of others, or find themselves unsure how to respond when their own rights are infringed.

2. Based on the author’s experience, the most common types of infringement in practice fall into the following two categories:

(a) When setting up a website or social media page, habitually downloading and using others’ photographs from the internet without permission (hereinafter referred to as “Scenario 1”);

(b) When promoting infringing products (e.g., counterfeit goods, parallel imports), simultaneously misappropriating the official photographs of the original product owner for advertising purposes (hereinafter referred to as “Scenario 2”).

3. In both Scenario 1 and Scenario 2, the infringer’s conduct constitutes “issuing copies to the public” within the meaning of the Copyright Ordinance (Cap. 528), and therefore equally amounts to copyright infringement. In Scenario 1, the SME may face legal risks due to unintentional infringement; in Scenario 2, the original brand holder can take proactive measures and leverage photograph copyright as an enforcement tool.

Core Strategy: Why is “Simultaneous Prosecution” More Advantageous?

4. At the commercial level, Scenario 2 is particularly prevalent—infringers, while selling infringing products, simultaneously use official photographs for promotion. In other words, the copyright owner can sue the infringer for both “product copyright” (e.g., designs, three-dimensional works) and “photograph copyright” in a single action—what the author terms the “simultaneous prosecution strategy.” Although applying for an injunction or claiming damages solely on the basis of photographs may have limited commercial value (especially when the photographs are not core assets), simultaneous prosecution offers the following three tactical advantages:

(a) Lowering the burden of proof and strengthening the basis of the claim Infringers typically copy entire photographs in full, rather than using them partially or making alterations, making it difficult for them to challenge the originality or copyright ownership of the photographs in their defence. By contrast, the determination of product copyright infringement (e.g., whether a design is “substantially similar”) often requires expert evidence and is more prone to dispute. Including a photograph copyright claim provides the copyright owner with a clearer and more easily provable act of infringement, making the overall litigation more meritorious.

(b) Facilitating applications for summary judgment, saving time and costs If the infringer and the copyright owner are in the same industry, or were even former business partners, the infringer can hardly argue that they “did not know the source of the photographs” or “did not know whom the photographs belonged to.” This satisfies the requirements for applying for summary judgment under Order 14 of the Hong Kong High Court Rules—namely, that the defendant has no substantive defence. A successful summary judgment application can result in a winning judgment within months (as opposed to over a year in ordinary litigation), significantly reducing the time and legal costs for SMEs in enforcing their rights.

(c) Supplementing evidentiary gaps in product copyright claims and creating a synergistic effect If the infringing product differs only marginally from the original product (e.g., differences in colour or packaging labels), making it difficult to prove product copyright infringement, pursuing the photograph copyright claim becomes particularly effective. The court, when hearing the case, will consider both claims together: the infringer both sells highly similar products and misappropriates official photographs to promote those products—the combination of the two is sufficient to prove that the infringer “knew or ought to have known” that their conduct was unlawful. This synergistic effect can significantly enhance the copyright owner’s bargaining power and encourage the infringer to seek settlement at an early stage.

Practical Steps: How to Implement a Photograph Copyright Strategy?

5. Based on the above analysis, SMEs, as copyright owners, should not readily relinquish their rights in photographs. The following are four specific strategic recommendations:

Step 1: Establish copyright records for photographs

6. Retain original files, shooting dates, author names, and first publication records (such as website launch dates or social media posts) for all product photographs. This information constitutes critical evidence for proving copyright ownership in the future.

Step 2: Issue a cease-and-desist letter upon discovering infringement

7. Before commencing litigation, a lawyer may be engaged to send a formal warning letter to the infringer, demanding an immediate cessation of the use of the infringing photographs and compensation. The letter should explicitly state that, in the absence of a settlement, simultaneous proceedings will be commenced in respect of both product copyright and photograph copyright. Many infringers, fearing litigation costs and the risk of summary judgment, will voluntarily compromise after receiving the letter.

Step 3: Assess the cost-effectiveness of simultaneous prosecution

8. When consulting with lawyers, compare the costs and expected returns of three strategies: (i) suing solely for product copyright; (ii) suing solely for photograph copyright; and (iii) simultaneous prosecution. Even if the independent compensation amount for photograph copyright is not high, considering its “catalytic effect” on the overall litigation (such as accelerating settlement and reducing evidentiary costs), simultaneous prosecution is often the most cost-effective option.

Step 4: Timely apply for summary judgment during litigation

9. Once it is confirmed that the infringer has no reasonable defence (for example, if they admit to using the photograph but argue that they “did not know it was copyrighted”), immediately apply for summary judgment under Order 14. This avoids protracted trial proceedings and secures compensation and an injunction at an earlier date.

Unexpected Gains and Risk Warnings

10. It is worth emphasising that prosecuting photograph copyright infringement in conjunction with other claims may sometimes yield additional compensation for the owner—if the court finds that the infringer acted “knowingly and wilfully,” punitive damages or additional costs may be awarded. Moreover, successfully establishing photograph copyright infringement can also serve as strong supporting evidence in other commercial disputes (such as breach of distribution agreements).

11. Lastly, SMEs should also take care not to become infringers themselves. In Scenario 1, casually downloading photographs from the internet for use on a company website, even for non-commercial purposes, may still expose the business to costly claims. It is advisable to use paid stock photo libraries, obtain explicit authorisation, or take photographs in-house. If a warning letter is received from another party, legal advice should be sought promptly—do not ignore it.