As per Section 2(c)(i) of the Indian Copyright Act, 1957, (the “Act“) a photograph is an ‘artistic work‘ even though it may not possess any artistic quality.
2. Who is considered to be the ‘author’ in a photograph?
As per Section 2(d)(iv) if the Act, ‘author’ in relation to a photograph is the person who takes the photograph.
3. Is part of a cinematographic film a ‘photograph’?
No; Section 2(s) of the Act provides that photograph as “includes photo-lithograph and any work produced by any process analogous to photography but does not include any part of a cinematographic film.
4. Can a photographer always claim ownership of the copyright in his/her photos?
No; according to Section 17 (a) of the Act, if a photograph is taken by an author/photographer in the course of his employment with the proprietor of a newspaper, magazine or similar periodical under a contract of service or apprenticeship, for the purpose of publication in a newspaper, magazine or similar periodical, then the said proprietor will be the first owner of the copyright in the work in so far as the copyright relates to the publication of the work in any newspaper, magazine or similar periodical, or to the reproduction of the work for the purpose of its being so published unless there is an any agreement to the contrary.However, (in all other respects it is the photographer who will be the first owner of the photographic work.
Similarly, in case of a photograph taken for valuable consideration (money) at the instance of any person, the first ownership of the copyright remains with the person paying the consideration, provided there is no agreement to the contrary.
5. How long a photographer can claim ‘copyright’ in his/her photograph in India?
Copyright in a photograph, as per Section 25 of the Act, can be exercised for 60(sixty) years from the beginning of the (next) calendar year following the year in which the photograph is published. This means if your photograph is published by anyone including you in 2013, the term of 60 years will be calculated from 2014.
6. Is making or publishing of a photograph of a work of architecture, a sculpture, or other artistic work, an infringement of copyright?
Section 52(s) of the Act provides that taking photograph of a work of architecture is not infringement of copyright. However, taking photograph of a sculpture or other artistic work is infringement of copyright of other artist if such work is not permanently situated in a public place or any premises to which the public has access.
7. Can a photographer assign his/her copyright in a photographic work to other?
Yes; the owner of the copyright in a photographic work or the prospective owner of the copyright in a future work can assign the copyright to any person either wholly or partially and either generally or subject to limitations and either for the whole term of the copyright or any part thereof.
8. How can a photographer assign copyright over his work to others?
First of all the assignment must be in writing and duly signed by the photographer/artist (Assignor) or by his/her duly authorized agent. Such an assignment deed should (a) identify the specific works (b) specify the rights assigned (c) mention the duration and territorial extent of such assignment (d) specify the amount of royalty payable, if any, to the author or his legal heirs during the currency of the assignment and (e) make provision for revision, extension or termination of the assignment on terms mutually agreed upon by the parties.
Furthermore, such an assignment deed must be duly executed which means it must fulfill the stamping requirement of that particular state where the parties are situated
9. What will be the period of assignment if it is not specifically stated in the assignment deed?
In such a case, the period of assignment will be 5 (five) years from the date of execution of the assignment deed.
10. What of the Assignee does not exercise the rights assigned to him by the photographer(author)?
If an assignee does not exercise the rights assigned to him within a period of one year from the date of assignment, the assignment in respect of such rights stands lapsed after the expiry of the said period unless otherwise specified in the assignment.
About the Author: The author is a law graduate from National University of Juridical Sciences (NUJS), Kolkata and has worked at one of the leading intellectual property law firms based out of Delhi and Noida. He is currently working as a corporate lawyer in one of the tier-I law firms based out of Bangalore, India.
Feel free to contact author at firstname.lastname@example.org for any further query or drafting of assignment deed.