Copyright in a Photograph

What is copyright?

Copyright is a bundle of right that is provided to owners of original literary, dramatic, musical, artistic as well as sound recording and cinematograph films to exclusively reproduce their work or substantial part of it. It ensures certain minimum safeguards of the rights of authors over their creations, thereby protecting and rewarding creativity.  However, unlike patents, copyright protects the expressions and not the ideas. There is no copyright protection for ideas, procedures, methods of operation or mathematical concepts (Article 9.2. of TRIPS). However, expression of that idea is copyrightable.

How is copyright different from trademark?

Copyright exists only in original works. A trade mark may exist in original or derived work. Original means originating from the creator and not copied from someone else. An original photo is a subject matter of Copyright. However, Apple (originally, the fruit) is a subject matter of trade mark for Computers. A photograph can be both Copyright and Trade Mark. Trade Mark in photos arises only when they are applied or sought to be applied on a product. For example, Shahnaz’s Hussain phptos on her products or Old Man’s photo on MDH products.

What are your copyrights in a photograph?

Photographs are characterised as ‘artistic work’ under Section 2 (c) of Copyright Act, 1957 of India (“Act“). Section 14 (c) provides for the rights of the owner of a photograph. The same are reproduced herein below:

  1. To reproduce and store the same in any material form, including:
    • Store it in any medium by electronic or other means;
    • Depicting in 3D of 2D; or
    • Depicting 2D of 3D
  2. To communicate the photograph to the public;
  3. To issue copies (distribution) of the work to the public not being already in circulation;
  4. To include the work in any cinematograph film;
  5. To make any adaptation of the work (rearrangement or alteration); and
  6. To do in relation to  adaptation of the work any of the acts specified in relation to the work in points 1. to 4.
How long your copyrights survive in a photograph?

As per Section 25 of the Act, copyright in a photograph, can be exercised for sixty (60) 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 2020, the term of 60 years will be calculated from 2021.

Whether copyright in a photograph taken by a foreign photographer protected in India?

India being one of the signatories and members of certain international treaties and conventions (such as Berne and TRIPS), provides protection to foreign artistic works (photographs in this case). If the foreign photographer has published the work in India, it is protectable in India.

Do you have any moral rights in a photograph?

Yes. Right to paternity and right to integrity. Paternity means right of attribution. Integrity is right to stop any mutilation or distortion of the work.

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.

Authors: Vivek Verma & Ankit Rastogi

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Published by Vivek Kumar Verma

Investment Banking Lawyer | Photographer & Blogger | Connoisseur of Food | Poet

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