SKILL VERSUS PRIVACY: WHO OWNS A PHOTO, A PAPARAZZI OR A CELEBRITY? by -Hardik Jain
The answer is the Paparazzi, unless the celebrity specifically owns them. Mere fact that the face on the photograph is yours does not provide you the ownership of it. In 2017 famous actress Jennifer Lopez was sued for $150k by a photographer for posting her photo on Instagram. In 2019 world-known singer Justin Bieber was also sued by Robert Barbera as he allegedly posted a photograph with Rich Wilkerson jr., which was taken by him. Even the list of cases is too long. Many famous celebrities were sued for the publication of their photos captured by an independent photographer, widely known as paparazzi. Though there still report no such case in India, these needs to be understood as the growing controversy in the country too. Paparazzi are independent photographs whose work is to take photos of celebrities and important people for the purpose of financial sale. Photography is an artistic work that is done by a person having certain skills, which is used to produce unique photographs. This artistic work makes the photographer to possess the right over his work. But Article 21 of the constitution deals with the right to life and personal liberty, so at first, it obstructs the inference of the photographer in the life of the celebrities and secondly gives them sole power to use their celebrity qualities such as photos, voice, signature and all. Thus, there can be seen the direct clash between these two rights. This segment dealt with these issuesand made an attempt to locate what are the provisions in India that deals with these rights of the paparazzi? What are the extends of these rights? And finally, locate the tussle with the right to privacy of the subject of the photograph that is the celebrity.
INTRODUCTION TO IPR
In the everyday world, there come various development works, whether they are scientific invention or literary work or some artistic work, all of them are somehow unique in their own way, and so require protection against unauthorised using or copying by others. And this led to the development of Intellectual Property Rights. These are the exclusive rights given to a person for a unique creation that lead him to protect this work and to take legal action for his infringement. World Intellectual Property Organisation is one amongst 15 specialised agencies of the United Nations that was created in 1967 with the motive to promote and protect Intellectual property (I.P.) across the world. Today its significance can be seen as the fact that a large part of the world’s income depends of them and even these rights and their usage stick a major part of the GDP of many countries.
Basically, there are four types of Intellectual Property Rights Patent, Trademark, Copyright and Trade Secrets. Patents are used to prevent anyone from using, creating or selling any unique invention done by another person. Trademark is given to a distinctive or unique sign that is used to establish and differentiate between goods or services provided by a company from others. Copyright covers the tangible form of ideas in the way of creation of some literary, musical, dramatic, artistic or architectural work. And last but not least, trade secrets include strategies, formulas or other confidential information. The right of the paparazzi comes under the copyrights, and thus this article deals exclusively with that Intellectual Property Rights.
COPYRIGHT ACT 1957
The Copyright Act 1957 (as amended by the Copyright Amendment Act 2012)2 governs the subject of copyright law in India.Section 13 of the Copyright Act 1957 states that copyright protection can be provided on literary works, dramatic works, musical works, artistic works, cinematograph films and sound recording. This Copyright Act, 1957 provides protection in two forms:-
- Economic Rights – Section 14 of the act provides the economic rights to the author of the These rights are mainly in respect of literary, dramatic and musical, to r store its work or reproduce in any material form.
- Moral Rights – Section 57 of the Act provides two basic moral rights to an author. Section 57(1)(a) provides the right to paternity, the author’s independent right to claim the authorship of the Further, Section 57 (1) (b) provides the right to integrity, torestrains or claim damages if there is distortion, mutilation, modification or other act in relation to the said work.
Acquisition of the copyright is automatic, and even without the registration of the copyright, one can claim ownership of the original work. Though a copyright registration can be said to be a precondition for a lawsuit, it is not mandatory, as the large daily inclusion of the artistic work makes this process undesirable. So, if you do not possess the copyright registration, then also you could protect your work just the person has to provide the evidence to justify its ownership over the work.
Thus, being a copyright owner of the work is sufficient to prove that the plaintiff is the owner of the original work, and there requires no registration for availing this copyright.
In the case of Ushodaya Enterprises Ltd v. T.V. Venugopal3, Andhra Pradesh High Court held that the registration of the carton by the defendant would not be of any help as the plaintiff owns a copyright of the artistic work under the Copyright Act, and no registration is required for the same. And so, the court upholds the infringement suit by the plaintiff.
PROVISION OF THE COPYRIGHT ACT DEALING WITH THIS ISSUE
Section 17 of the Copyright Act 1957 explicitly states that the author of a work shall be the first owner of the copyright. And Section 2(d) defines the author in relation to a photograph, the person taking the photograph. Section 14(c), specifically dealing in the artistic work, gives the photographer the exclusive right to reproduce or store it or to depict or communicate it in two or three dimensional. Thus, the statue made it clear that it was the phototaker or the paparazzi, not the subject of the photo or celebrity, that has to be considered as owner. And so, the paparazzi have the sole right to circulate their photographs.
INFRINGEMENT OF THE COPYRIGHT
If any other person, without permission, circulates or publish these photograph, then infringe their copyright under section 51. Section 51(b) said that when any person sells or trade or distribute or exhibit in public any work without permission from the author or owner of the work, that leads to its infringement of the copyright. So, talking broader sense that even the subject of the photograph would not publish or circulate it unless they took the consent of the paparazzi.
In Prakashak Puneet Prashant Prakashan v.Distt.judge, Bulandshahr and Ashok Prakashan (Regd)4 the Allahabad High Court held that if the petitioner publishes a book by adding any word before or after the book ‘Bal Bharati, he infringes the copyright of the respondent.
In the case of the Hindustan Pencils Ltd v. Alpna Cottage Industries5, the Copyright Board of Goa held that when the similarities between the artistic works of the parties are fundamental and substantial in material aspects, it will amount to copyright violation.
In the case of R.G. Anand v. M/S Delux Films6 case court observed that when a same idea is developed in a different manner then the sources of them were being common and so similarities are bound to occur. In that case, it has to be determined that the similarity must be on the fundamental ground or substantial aspect. Thus, for a successful infringement suit, it also has to decide whether the similarity was fundamental or substantial.
Also, just like the common rule of law that there exists no right without a remedy, under chapter 12 of the Copyright Act, 1957, clears the provisions related to the remedies section 54 defines the expression of the ‘owner of copyright’ and talks of the remedies in general and section 55 in particular to the civil remedies.
EXTEND OF THE RIGHTS OF OWNERSHIP AND PUBLICATION OF THE PHOTO??
Reading the provision under the statute of The Copyright Act 1957, it is very much clear that the author has the sole right to use and protect its creation, that is, the photograph was taken. But this right is not absolute. The nature of the picture plays an important roleto decide the extent of this right and to decide whether there is the legitimate use of the right or not.
OBSCENITY OR MANIPULATION WITH THE WORK
In 2014 several nude photos of celebrities very leaked on the internet. This leak turns to a
$100 lawsuit to google over not being able to protect.7Section 2(y) and Section 13 of the Indian Copyright Act, 1957 states that for the subsistence of copyright, there should be originality of the content.
In the case of Sex Style v. Abutbul (Israeli Magistrate Court), there held that copyright protection cannot be held if the work is immoral in nature.
In Super Cassettes Industries Ltd. v. Hamar Television Network Pvt. Ltd8., Delhi high court said that if the underlying work is illegal or immoral, then the court is precluded from enforcing all rights of an owner.
The Judicial Magistrate in the case of State of West Bengal v. Animesh Boxi9 likened non- consensual sharing of sexual images online to “virtual rape”.
So, it has to be clear that manipulating the photos would lose its originality and thus the copyright. Further, this barely taking a photo does not consent to its inappropriate usage. If that happens, it attracts the punishment.
The obscenity in the public place has been attracted punishment under Section 294 of the Indian Penal Code(IPC)10. Further, Section 67 of the Information Technology Act11deals with the punishment for publishing or transmitting obscene material in electronic form.
Also, the Indecent Representation of Women (Prohibition Act), 198612 talks of the punishment, if when portraying women or any part of the body in such a manner to have an indecent effect or outrageous or denigrating women is likely to deprive, corrupt or injure the public virtue or morals.
RIGHTS OF THE SUBJECT OVER THE PHOTO
Further, if the work of the paparazzi was used for personal or private use,then there lies no infringement as the motto here got differentiated. So,a celebrity or any person liking his photograph shares it non-commercially to his family members, then the lawsuit for the infringement would not prevail this is mentioned under the exceptions of the infringement under section 52.
In the case of Garware Plastics and Polyester Ltd. v. Telelink and Ors13derives the line of the distinction between private or public communication. The court applied the test of the character of the audience and observed that if the audience of the communication is restricted, then it has to be considered yes private search for instant members of the family guest or the close friends. Show a celebrity communicating his or her photo with friends or family members would not be able to be sued.
In Godrej Soaps (P) Ltd v. Dora Cosmetics Co, the plaintiff Godrej Soaps Pvt. Ltd.14was the owner of the copyright of the carton on the soap sold by the defendant Dora Cosmetics under the trademark of ‘CROWNING GLORY’, Delhi High Court held that here the carton was designed for valuable consideration and by a person in the course of his employment for and on behalf of the plaintiff and so there held the copyright infringement. By this suit, it is clear that when the work is done for others, for a valuable consideration, then there is also the shift of the copyright, just as the Godrej Soap owns the copyright for the work of the employee that is paid consideration for it.
Similarly, if a celebrity pays a photographer to take his photo, then he or she would be classified as owner, as the fact that here the photographer skills are being hired for a particular object. The definition of ownership as such is mentioned under article 17 (b).
TUSSLE WITH THE RIGHT TO PRIVACY
The term “privacy” has been described as “the rightful claim of the individual to determine the extent to which he wishes to share of himself with others and his control over the time, place and circumstances to communicate with others. This means his right to withdraw or to participate as he sees fit. This also means the individual’s right to control the dissemination of information about himself; it is his own personal possession.”15
In the USA, the issue of privacy of celebrities came across in the case of Barber v. Times Inc16 in which paparazzi, without permission, took photographs of Dorothy Barber giving birth to a baby boy. Ms Barber sued the paparazzi and was awarded $3000 as damages on account of an ‘invasion of her right to privacy.
In India Article 21 of the Constitution17 talks about the Fundamental Right to Life and Liberty. The Supreme Court has asserted that Article 21 is the heart of the Fundamental Rights. And giving the various judgments showcase that the two words were written under it, life and liberty, should not be interpreted in a narrower sense. Making its scope wider and wider entertaining the rights from the clean environment to the right to internet. The Supreme Court recognised one such right that is the right to privacy, as the fundamental right in the case of KS Puttaswamy v. UOI18.
Firstly, coming to this debate, it has to be noted that in the usual daily life, it was the media, not the paparazzi, who let everytime around the celebrity to make it to the wider mootable. Getting their picture breaking into their life for the stories and the chaos. But this line of separation of the media man or the paparazzi is very thin as the paparazzi also follow them to sell the pic to media or magazines. So here, the discussion was not significant to a particular group rather, it analyses what extends the law permits them to come around and take to the privacy.
In the case of M.P Sharma v. Satish Chandra19, which was rendered by the eight judges bench from the case of the Kharak Singh v. State of Uttar Pradesh20, rendered six judges bench.The Supreme court, here referring to Munn v. Illinois,21 held that though our constitution does not expressly refer to the right to privacy, yet it can be traced from “Right To life” enshrined in Article 21 of the constitution, and this right is available to all the citizens unless prohibited by constitutional prohibitions. Thus, the seed of privacy had been sown from here it’s just it has to be taken a fruitful shape.
In the case of the KS Puttaswamy v. UOI22, the Hon’ble court judges struck down the provisions of the Aadhar Act that was an intrinsic part of a person’s private life and liberty. The court overruled the judgement given in the case of the Kharak Singh v. State of UP23 and
M.P. Sharma v. Satish Chandra and said that the right to privacy would be included as part of Article 21, right to private life and liberty. Thus, any celebrity (as any citizen) in India can avail right to privacy when he believes his right is infringed by the acts of other people.
RIGHT TO PUBLICITY
International Trademark association defines the right of publicity as an intellectual property right that protects against the misappropriation of a person’s name, likeness, or other indicia of personal identities—such as nickname, pseudonym, voice, signature, likeness, or photograph—for commercial benefit.
In the case of Douglas and Zeta Zones v. Hello Ltd24, Brook LJ defined the “Right to Publicity” as “An exclusive right of a celebrity to the profits to be made through the exploitation of his fame and popularity for commercial purpose”.
In the case of Titan Industries Ltd. v. Ramkumar Jewellers25, an unauthorised photo of Amitabh Bachan and the Jaya Bachan wearing the plaintiff jewellery (Titan Industries)was used by the defendant (Ramkumar Jewellers) for selling his product. Delhi High Court here defining the right to publicity grants an injunction that stops the plaintiff from using the photo of Amitabh Bachan and Jaya Bachan, which was unauthorised.
This right to publicity can be said as part of the right to privacy as the fact the owner of the name or image or other aspects of their identity has the sole right over it. This right to publicity was first time recognised as a part of right of privacy in the case R RajaGopal v. State of Tamil Nadu26, in which the supreme court stated that “the first aspect of this right must be said to have been violated where, for example, a person’s name or likeness is used, without his consent”.
Though this right is not codified in any statute of India, but in the various cases, it was discussed. In Sourav Ganguly v. Tata Tea Ltd27. The court granted relief to the Saurav Ganguly by holding the popularity as his intellectual property, and selling them using his name without his consent would lead to its violation. In D.M. Entertainment Pvt. Ltd. v. Baby Gift House28, the court ruled in favour of the DalerMahendi, stating that the commercial exploitation of a person’s identity is his or her own right.
Section 38 and Section 57 of the Copyright Act 1957 also talks of the protection from unauthorised use.Section 38 talks about the performer’s right that the performer has the right to hold, reproduce or sell his sound or visual recording. And Section 57 talks of the author’s right to claim authorship or claim damages in case of violation.
So, although the paparazzi holds the right on the photograph of the celebrity that they captured. But this right cannot be extended to use the other attributes such as goodwill or voice or signature that solely held by the celebrity.
So, it is clear from the above discussion that the rights of the paparazzi over their artistic work of the photography are protected, unless and until they did not manipulate the photograph or infringe any special rights of the celebrity without their permission. Thus, it can be said that the celebrity cannot gain popularity over the cost of the work of the paparazzi, and the paparazzi cannot gain financially over the cost of the celebrity’s publicity. And maintaining the balance between these rights, with the statute enacted and the precedents, we could assume that cases that we have seen with the celebrities such as Justin Beiber and Jennifer Lopez would not be problematic to deal with in India. Though still, there held no special provision that specifically deals with the infringement of celebrity rights, so it could be advised to have the statutes so that there would be better-demarcated lines that determine the scope of these conflicting rights.
- The Copyright Act, 1957 (14 of 1957)
- Saxon Norgard,Privacy And The Paparazzi: Who Owns Your Photo?, Each Other, 6 May 2017, Privacy And The Paparazzi: Who Owns Your Photo? | EachOther
- Warren, D., & Brandeis, L. D. (1890). The Right to Privacy. Harvard Law Review, 4(5), 193–220. https://doi.org/10.2307/1321160
- How Can You Protect Your Privacy When You’re Famous? June 19, 2016 https://blog.ipleaders.in/can-protect-privacy-youre-famous/
- Claudia Rosenbaum, Celebrities Are Being Sued For Posting Paparazzi Photos Of Themselves On Social Media, BuzzFeed News Reporter, December 27, 2018
- Ken Kaminesky, Photography and Copyright Law, https://blog.kenkaminesky.com/photography-copyright-and-the-law/
- Reveries of a Publicity Right https://spicyip.com/2017/07/reveries-of-a-publicity-right.html
- Intellectual Property Rights (IPRs),Committed to connecting the world, https://www.int/en/ITU- T/ipr/Pages/default.aspx#:~:text=Intellectual+Property+Rights+(IPRs)+are,copyrights
- Patrick Alach, Paparazzi and Privacy, Digital Commons@ Vol. 28 No. 3
4Prakashak Puneet Prashant Prakashan v. District Judge Bulandshahr Uttar Pradesh 2001 (43) ALR 136
5Hindustan Pencils Ltd v. Alpna Cottage Industries 2007 (34) PTC 49 Del
7CBC News, Google threatened with $100M lawsuit over nude celebrity photos, Oct 02, 2014 2:19 PM ET, https://www.cbc.ca/news/entertainment/google-threatened-with-100m-lawsuit-over-nude-celebrity-photos- 1.2785565
8Super Cassettes Industries Ltd. v. Hamar Television Network Pvt. Ltd 2011 PTC (45) PTC 70 (Del.)
9State of West Bengal v. Animesh Boxi, C.R.M. No. 11806 of 2017, GR/1587/2017.
10The Indian Penal Code, 1860, § 294, Acts of Parliament, 1860 (India)
11The Environment (Protection) Act, 2000, § 67, Acts of Parliament, 2000 (India)
12The Indecent Representation of Women (Prohibiton Act), 1986
13Garware Plastics and Polyester v. Telelink and Ors. AIR 1989 Bombay 331
14Godrej Soaps Pvt. Ltd. v. Dora CosmeticsCo. (AIR 1996 Cal 367)
15Adam Carlyle Breckenridge: The Right to Privacy, 1971
16Barber v. Time, Inc. – 348 Mo. 1199, 159 S.W.2d 291 (1942)
17The Constitution of India [India], 26 January 1950, available at: https://www.refworld.org/docid/3ae6b5e20.html
18Justice K. S. Puttuswamy (Retd.) and Anr. vs Union Of India And Ors. AIR 2017 SC 4161
19M.P. Sharma v. Satish Chandra, District Magistrate, Delhi ((1954) SCR 1077)
20Kharak Singh v. State of Uttar Pradesh ((1964) 1 SCR 332)
21Munn v. Illinois 94 U.S. 113 (1876)
23Kharak Singh v. State of UP 1963 AIR 1295
24Douglas v. Hello! No 2  EWHC 786 (Ch)
25Titan Industries Ltd. v. Ramkumar Jewellers, 2012 (50) PTC 486 (Del)
26R RajaGopal v. State of Tamil Nadu1995 AIR 264
28D.M. Entertainment Pvt. Ltd. v. Baby Gift HouseMANU/DE/2043/2010