Gaspard- Felix once said “there is no such thing as photography because in photography, as in all things, there are people who can see and others who cannot even look”he believes that the theory of photography could be learnt in an hour and its techniques in a day, but what couldn’t be taught were a sense of light and a grasp of moral intelligence. Let’s see what the IP expert has to say about this through this article.
Mr. Nosy, is an engineer by profession working in Delhi and a photography enthusiast. He runs a website, where he uploads all his best photographs. He attended a friend’s birthday party in Jim Corbett Resort and Bar. At the party, Mr. Nosy sets up his camera on a tripod at a certain distance from the sofa in the living room. He arranges the various settings on his camera and positions it to get the sofa in the centre of the frame. He produced artistic effects in a photograph by having a peculiar background, showed highlights focusing in a particular manner. He stands behind the camera and clicks the first photograph with everyone else either sitting on the sofa or on the floor. For the second photograph, four more people turned up, who stood on either side of the sofa. His friend Mr. Flaunter, who is a professional photographer and also running a similar website like Mr. Nosy’s, asks him to take his place on the sofa. Mr.Flaunter adjusted the zoom on the camera to get everyone in the frame and then clicked the photograph. Lastly, everyone urged Mr.Nosy and Mr.Flaunter to join in for a group photograph. Accordingly, Mr.Nosy adjusted the timer in his camera for the group photograph – Third photograph.
Weeks later when Mr.Nosy uploaded all the photographs on his website, he received a legal threat from Mr.Flaunter to either pull down the group photograph and photographs clicked by him or to pay him 50% royalty for all the uploaded photographs. Mr.Nosy being worried about his rights come across a blogpost on Monkey’s copyright on a photograph by the IP Press here, and he decides to approach us to know his rights.
The IP PRESS brings to you an interesting set of parlance where there would be a colloquy or a small talk with Mr. Ram Kumar, an IP Lawyer from Hyderabad covering the broad spectrum of Litigation and Enforcement before Trial Courts, High Court and the Supreme Court, and is also an expert in Valuation and Mediation with focus on IPR.
Mr. Nosy: Hello Mr. Ram, thank you for taking out your valuable time for me.
Mr. Ram: Thank you.
Mr. Nosy: Starting with the basic question, Photography in today’s world has become so common and so essential that it is almost equivalent to breathing. I am sure many would not have clarity as to who has the authorship/ownership in Photographs and what are the rights associated with it.?For example, the issue of the first photograph in this matter.
Mr. Ram: You are talking of two things here. First is the authorship and second is the owner ship. I will not say they are different in so far as the subject matter of CR is concerned. But the difference still exists in that “author is a person who makes the work. He ideats his work and puts it in a material form”, and “ the owner is the person who owns. An owner can always own a work created by another author by following the due process of law”.
The copyright law around the world is almost homogenous except for small differences in procedural aspects. The American law says that the person who clicks the shutter is the owner of the photograph and not the owner of the camera or not even the subject in the photo. Now if you legally look for an answer as to who is the Copyright owner in photographs, then Sec 17(b) of the Copyright Act, 1957 says that in the case of a photograph taken, or a painting or portrait drawn, or an engraving or a cinematograph film made, for valuable consideration at the instance of any person, such person shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein; which otherwise means the photographer is considered to be the first owner unless there’s an agreement to the contrary. To immediately answer you it is the photographer who is the author and owner of the first photograph.The rights of the Photographer as an owner of the Copyright in the photograph, are the right to reproduce, to make any adaptation of the work, publish his photographs etc.
Mr. Nosy: Is Copyright registration mandatory to protect the photographs? What is the best way to protect the photographs from being exploited without the authority of the owner?
Mr. Ram: Copyright registration is not mandatory since Copyright exists the moment the photograph is taken. However, a Copyright registration for a photograph is always preferred as the registration puts the owner in an advantageous position to in the event when the ownership is questioned or when there is an infringement of Copyright. The advantage of registration is that when there is a question with regard to the propriety of the work or with regard to the infringement of the Copyright, the owner need not prove his ownership since there would be a Copyright Registration Certificate. All that he has to prove before the Court is that his work has been copied. The best way to protect a photograph from being exploited is to seek for filing and registration of Copyright.
Mr. Nosy: What will be the role or threshold of originality in photographs where the works is produced mechanically and not with an effort or mental input?
Mr. Ram: The doctrine of Modicum of Creativity stipulates that, in order to be original, there must be sufficient amount of intellectual creativity and judgement while creating a work. This means that, for any work to be considered as original, it needs to be a result of the author’s creative activity. Since a Copyright in any work, like other Intellectual Property Rights, relate to the result of the sweat and brow or application of intellect of a human being, the requirement of creative judgement plays an important role in determining the originality of a photograph.
Mr. Nosy: Whether the exercise of minimal skill by Mr Flaunter allows the work to be considered as a collaborated work and can he seek joint authorship? For example, the issue of second photograph in this matter.
Mr. Ram: The excersie of skill by Mr. Flaunter, in adjusting the zoom on the Camera to get everyone in the frame of the Photograph, is sufficient for the work to be called as a Collaborated work wherein Mr. Flaunter is the author of the second photograph but Mr. Nosy remains the owner of the photograph. Since Mr. Nosy was in the photograph, he cannot be considered as an author and therefore the question of joint authorship does not arise.
Mr. Nosy: In the present scenario, who would you say is the author? And who is the owner?
Mr Ram: Since Mr. Flaunter has applied his skill, by adjusting the zoom to fit everyone in the frame, he shall be the author in case of the second photograph. However, since you have invested the money for the equipment and have created the setup, you shall remain the owner of the second photograph.
Mr. Nosy: Who will be the author of the third photograph, which was clicked by setting the timer in the camera.
Mr. Ram: Assuming that you have started the timer on the Camera only after adjusting the frame, you shall be considered the author of the third photograph.
Mr. Nosy: How do we decide the royalty rate in case of joint authorship? What possible remedy would Mr. Flaunter be awarded by the Court of law if any?
Mr. Ram: There cannot be question of joint authorship in the present instance, since you and Mr. Flaunter have not contributed your creative intellect together for any of the 3 photographs. However, in case of joint authorship of photograph, a royalty rate can be decided according to the level of investment of skill and/or money by each author to create the work. Mr. Flaunter would have to prove that he is indeed an author of the second photograph for him to have a remedy in a Court of law.
Mr Nosy: Thank you Mr. Ram Kumar for addressing all the questions. I will now prepare a befitting reply against Mr. Flaunter. He will realise that I am now well acquainted with the issue of authorship in Photographs from the pens of IPHolics.
Mr. Ram Kumar
The above proposition is answered by Mr. Ram Kumar. He is the prominent Lawyer in Telangana Bar. He has established one of the oldest boutique IP law Firm in AP – WordictIP. This firm went on to become a flagship brand in AP and Telangana and today is considered a pioneer firm doing work in the exclusive domain of IP. He is also a senior partner of another law firm IP Markets. In addition, Mr. Ram Kumar is also a passionate teacher and contributes his might for the IP Awareness through various Public Sector Organizations, NGO, Chambers of Commerce, etc.
We are thankful to our team member Pritika Bhasin for her contribution in creating this proposition.