SMILE PLEASE- DON’T SHY AWAY FROM THE COPYRIGHT LAW IN INDIA RELATING TO PHOTOGRAPHY – Eshwars
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SMILE PLEASE- DON’T SHY AWAY FROM THE COPYRIGHT LAW IN INDIA RELATING TO PHOTOGRAPHY

Authored by Vishaka S, Nithin Satheesh & Saisunder N.V

The increase in usage of social media platforms has also led to a corresponding increase in users uploading and sharing of photographs and pictures, either to express one’s feelings and views on a subject matter or to simply share it with their friends and relatives on such platforms. Now, what happens when you notice that some of the images that you uploaded to your social media account is used by some other person without your knowledge, or consider a scenario where you are putting up a corporate presentation for your company, to be used in relation to a client project and you use some images that you obtained from the internet, which is a photograph of another person or of something that has been posted in the internet by another person? The immediate question that comes to one’s mind is – Is it legally allowed or permitted to use such photographs or pictures? More often than not we come across incidents where such pictures or photographs are used by a third party in an unauthorized manner. With the surge in the number of people posting their photos on social media platforms which is easily accessible by any other person, it is not surprising to see the increase in cases pertaining to infringement of copyright and breach of privacy of individuals. This article explains the law and the judicial precedents prevailing in India on the aspects of copyright and its protection in relation to photographs.

To start with, it is to be noted that photographs are classified as artistic works within the meaning of Section 2(c) of Indian Copyright Act, 1957 (“Act”) and the photographer is considered as the author and owner of the photograph. However, where such photograph is clicked for valuable consideration on behalf of any person, such other person shall be the first owner of the copyright in the photograph, provided there is no agreement to the contrary.

In a very recent order passed by the Bombay High Court in the case of in Sakshi Malik v. Venkateshwara Creations [Commercial IP Suit no. 3510 of 2021 with IA no. 3514 of 2021], the Plaintiff who is a model and actor filed a suit for copyright infringement and defamation claiming damages against the defendant for the illicit and unauthorised usage of her image in the Defendant’s Telugu movie titled “V”. She claimed that the image which was used by the Defendants was one which was uploaded by her in her private Instagram account and such use without her consent amounted to infringement of copyright. The Court while passing an order in favour of the Plaintiff reasoned that simply using another’s image, and most especially a private image, without consent is prima facie impermissible, unlawful and entirely illegal. Following the interim direction of the Bombay High Court, the movie was temporarily removed from the OTT platform and then reuploaded after deleting the scene containing the private image of Plaintiff.

Similarly in the year 2013, in Sonu Nigam v. Amrik Singh (alias Mika Singh) [MANU/MH/0517/2014], the plaintiff filed for an injunction against Mika Singh and the recording label OCP Music wherein the defendants had put up hoardings and billboards containing the plaintiff’s photographs as advertisements for the Mirchi Awards 2013 without obtaining the plaintiff’s consent or permission for such advertisement. The Bombay High Court restrained the defendants from displaying the plaintiff’s photographs and ordered them to pay monetary damages of Rs.10 Lakhs towards specified charities, consented by the parties.

In Koninlijke Philips N.V. & Anr. vs Amazestore & Ors. [MANU/DE/1390/2019], the plaintiff filed a suit against the defendants for intellectual property infringements at various levels including infringement of copyright in a photograph of the model advertising the plaintiff’s product wherein the defendant merely replaced the plaintiff’s product with their product. The Delhi High Court held that the unauthorised and brazen reproduction of the plaintiff’s artistic work amounted to infringement of copyright under section 51 of the Act and consequently granted permanent injunction against the defendant and directed the defendants to pay compensatory and exemplary damages to plaintiff.

It is important to note that copyright protection is afforded to any photograph irrespective of whether such work possesses artistic quality. Hence, it can be safely concluded that any photograph, irrespective of its quality and content, is protected under copyright laws in India and to use such a photograph without consent of the owner would tantamount to a potential copyright infringement. In Fairmount Hotels Pvt. Ltd. v. Bhupender Singh [CS (OS) 2754/2015 with IA no. 17922/2015], the plaintiff sought for a permanent injunction and damages for copyright infringement wherein the defendant who was managing the hotel of the plaintiff between 2010 and 2013, opened his own hotel in Manali by the name “Mountain Inn” and posted photographs of the plaintiff’s hotel on the defendant’s Facebook page thereby misrepresenting it as that of the defendant’s hotel. The Delhi High court ordered a permanent injunction against the defendant from using the photographs of the hotel of the plaintiff and directed the defendant to pay Rs. 50,000 to the plaintiff as damages.

However, the Indian courts while analyzing the cases of copyright infringement have always been cautious about the application of principle of de minimis and exceptions of fair use under the Act. In The Chancellor, Masters & Scholars of University of Oxford &Ors. v. Rameshwari Photocopy Service &Ors. [MANU/DE/2497/2016], the Delhi High Court while deciding a case on infringement of copyright, observed that where students, instead of taking notes from the books in the library, click photographs of each page of the book required to be studied by them and thereafter take print of the said photographs or to read directly from the cell phone, it would be qualified as fair use under the Act and hence not a case of copyright infringement.

In Durga Dass Publications (P) Ltd v. Hindustan Times Ltd [Suit No. 81/08, 31 October, 2011], the plaintiff filed for permanent injunction and damages against defendant for publication and circulation of a magazine titled “Gourmet Fare” containing few photographs of restaurants which was taken from the plaintiff’s book  “The Connoisseur Handbook on Eating Out”. The Delhi High Court dismissed the suit of plaintiff as there was no evidence proving that plaintiff has copyright on those photographs while also making a brief observation that the defendant had allegedly copied 7 photographs out of 100 contained in plaintiff’s book, which is a small fraction and cannot be termed as copyright infringement.

It is pertinent to note that the aforesaid judicial principles under the copyright law also applies to images that one may come across on the internet, while conducting a simple web search or image search on a particular subject matter. It is important to understand that the usage of such photographs or images may be subject to the terms and conditions of the website or the link in which such images have been uploaded by the owner of the image. It is to be noted that, usage of such images may be subject to payment of fee to entities or persons operating such websites in which the photographs have been legally uploaded for further licensing and usage. Hence, care needs to be exercised prior to using such images. In this regard, it is also to be noted that there are certain websites that have image stocks that can be legitimately used without payment of any royalty or license fees.

Nevertheless, in both the cases – whether images are downloaded for a fee or free, the user is required to execute licensing agreement with the website, and violating the terms of the license or other conditions of use as mandated by such websites shall raise legal consequences.

Although the Act provides for unambiguous and comprehensive provisions for protection of copyrights in photographs, with the advent of technology and increased use of social and digital media, it has become all the more important to understand the position of Copyright law and the related judicial precedents in India surrounding photographs and its legitimate use. To summarise, the key takeaways from the various judicial precedents regarding the legal position of copyright in photographs in India are as follows:

i. The person who clicks or shoots the photograph is considered under law to be the first owner of the copyright in such pictures or photographs, unless the same is being photographed by that person at the behest of another person, in which case the person at whose behest the photograph is being clicked or taken is considered to be the first owner of the copyright thereunder.

ii. Accordingly, it becomes very important for the photographers or the person at whose behest the photographs are being clicked, who wish to own the rights over thephotographs to clearly document the understanding and enter into agreement with the other to clearly define and retain their rights.

iii. Today, people have an option to download and use copyrighted images/photographs legally for any commercial or non-commercial purposes by obtaining license to use the same through intermediary websites such as Shutterstock, Fotollia, Unsplash, Photo Pin etc., either for a stipulated fee or free of cost, as the case may be. However, such licensing terms always appreciate and encourage users to give due credit to the photographer and the website at the time of usage.

iv. People uploading photographs on public platforms need to have a constant vigil on the potential misuse of their pictures by any other third person and apart from the issue of copyrights infringement for unauthorized use, suitable actions for misuse or personality and privacy rights violation can also be brought before the Indian courts in such matters.

v. As much as the copyright subsists in a photograph, the alleged action for infringement is viewed by the courts wholistically on a case-to-case basis, bearing in mind the principle of de minimis and the exceptions of fair use as provided under the Act.

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