I.

INTRODUCTION

Copyright is a set of exclusive rights which is granted to the originators of artistic works.1 In
terms of the Indian Copyright Act, the artistic work under sec 2(c)(i) 2 includes photograph
irrespective of it possessing an artistic quality. Further, Section 2(s) states that “photograph
includes...any work produced by any process analogous to photography but does not include
any part of a cinematograph film.”3 The owner of the copyrighted work can restrict the
reproduction and distribution of his work.4

Internationally there are few conflicts in achieving a uniform copyright protection of

photographs. Firstly, photographs have an inherent “non-original”5 potential as some aspects
of photography are mechanical and a basic photograph can be seen as a copy of a reality in end
and is perceived as unoriginal in that sense.6 Secondly, after acceptance as an artistic work
across the countries the difficulty lies in where a line of ‘originality’ should be drawn on a long
spectrum of photography where at one end lies a “truly original photograph” 7 with several
artistic choices of lighting, subject matter, angle etc. and on the other end lies a “point and
press”8 work of a man clicking pictures, merely out of interest without putting any effort to
depict an artistic work.

Furthermore, protection of digital photographs is yet another challenge in ensuring copyright

protection. For example, the famous Beatles case where the Court of Frankfurt denied
copyright protection to a photograph of the pop group Beatles because it was a non-original
photograph.9 Thus, internationally same photograph maybe devoid of originality in different
jurisdictions.

The scope of this paper highlights title of ownership of photographs, copyright protection under
civil and common law jurisdictions and level of difficulty faced in providing copyright
protection to certain digital images.

1
T C James, Indian Copyright Law and Digital Technologies, 7 J. INTELLEC. PROP. RIGHTS 423 (2002).
2
S. 2(c)(i), The Copyright Act, 1957 (Act No. 14 of 1957).
3
Id., S. 2(s).
4
T C James, Indian Copyright Law and Digital Technologies, 7 J. INTELLEC. PROP. RIGHTS 423 (2002).
5
CHRISTINA MICHOLAS, THE LAW OF PHOTOGRAPHY AND DIGITAL IMAGES 18 (2004).
6
Id.
7
CHRISTINA, supra note 4, 108.
8
Id.
9
CHRISTINA, supra note 4, 130.
 II. OWNERSHIP OF COPYRIGHT PROTECTION FOR PHOTOGRAPHS

Section 2(c) defines photograph under artistic works with no set standards of artistic quality.10
Section 2(d)(vi) defines that in the case of photograph the author is the person taking the
photograph.11 Original artistic works are protected under Section 13.12 Section 17(b) provides
that when a photograph is taken by a person then in the absence of an agreement to the contrary
he will be the first owner of copyright protection for his work in photograph. 13 In India,
photographs have a shorter term of copyright protection and are protected for “60 years from
the beginning of the calendar year following that in which the photograph was first
published.”14

There are several stages in photography where copyright protection can be claimed. There are
at least four stages that can be in focus, “the camera, the owner of the camera, the owner of the
camera, the owner of the film and the object.”15 But when a photographer is commissioned, the
hirer will retain copyright in the photographs. The Court had further cited in a case that the
negatives of a photograph are the property of the photograph unless he has contracted to
surrender his rights.16

An example from a case,17 where a person wanted his photograph to be taken, and then buy
three prints of it along with the negative of the photograph. These scenarios can be severed to
understand ownership better. In the first scenario, artistic skill and labour of the photographer
will be required to take a good photograph; in the second scenario, skill and labour of the
photographer will again be required in developing the photograph into a negative; and in the
third scenario the three prints will be required on a paper of a set size and quality. 18 In all the
scenarios the “author”19 will be the person who took the photograph but in the third scenario
the prints produced cannot be used by the photographer without the directions and the
permissions of the customer.20

10
The Copyright Act, supra note 1, S. 2(c).
11
The Copyright Act, supra note 1, S. 2(c).
12
The Copyright Act, supra note 1, S. 13.
13
The Copyright Act, supra note 1, S. 17(b).
14
The Copyright Act, supra note 1, S. 22.
15
Roshan Studios v. P.D. Sharma, MANU/SM/0007/1993, ¶5.
16
BRITISH JOURNAL PHOTOGRAPHIC ALMANAC 476 (1958).
17
Camera House, Bombay v. The State of Maharashtra, ¶24.
18
Id.
19
As was described under the 1957 Act prior to 1995 amendment.
20
Camera House, supra note 19, ¶24; Roshan Studios v. P.D. Sharma, MANU/SM/0007/1993, ¶5.
Difficulty nowadays is arising in providing copyright protection to the owners of the digital
photographs which are appropriated anonymously with ease due to advances in the Internet
and images are modified easily using softwares. 21

III. COPYRIGHT PROTECTION OF PHOTOGRAPHS UNDER COMMON LAW AND CIVIL LAW

In Bauman v. Fussel22, a painter who wanted to make in his own style a painting of an event
by using a photograph of the plaintiff was not held liable for committing a breach of copyright
since he used them to get intricate accurate positions. But, a mere copy of a photograph
produced from a photocopying machine cannot qualify for copyright protection as the work is
devoid of application of minimum skill or labour on the work.23

In common law a photograph, however simple is seen to have “some degree of originality or
labour or skill.”24 Thus, the ambit of copyright protection is much wider and there is a least
chance that a photograph may not be provided protection due to lack of originality. Therefore,
the problem that exists is on the second stage where the copyright protection is infringed when
a partial reproduction of the original work has been initiated. In India, a portrait-photo of
Mahatma Gandhi was made by combining two photos of him. The Court held that since there
is an application of skill and labour in producing defendant’s photo and is different from the
two photographs used it cannot be held to amount a copyright infringement.25

A mere snapshot of a landscape should be classified as an original work for the purposes of
copyright protection even though another photograph of the same landscape can be taken by
anyone else too albeit without any infringement of the photographer’s copyright protection,
caveat the photograph itself should not be copied.26 In contrast, US and Canada have held that
even a snapshot should have some artistic quality.27

Copyright protection is denied to any artistic work in a situation where the elements have been
copied with “a deliberate intention to imitate as slavishly as possible.”28 Few examples, first in

21
Tusar Kanti Saha, Copyright Law in the Changing World, 8 J. INTELLEC. PROP. RIGHTS 26 (2003).
22
Bauman v. Fussel, (1978) RPC 485, ¶48.
23
DR VK AHUJA, LAW OF COPYRIGHT AND NEIGHBOURING RIGHTS: NATIONAL AND INTERNATIONAL
PERSPECTIVES 37 (2007).
24
Id., 38.
25
Associated Publishers v. Bashyam, AIR 1964 Mad 114; Gupta Suvrajyoti, Digital alteration of photographs &
intellectual property right, 10 J. INTELLEC. PROP. RIGHTS 495 (2005); Anurag Pareek, Protection of Celebrity
Rights – The Problems and the Solutions, 11 J. INTELLEC. PROP. RIGHTS 418 (2006).
26
J. LAHORE, COPYRIGHT AND DESIGNS 110
27
Ateliers Tango Argentin v. Festival D’ Espagne et D’ Amerique, (1999) 84 C.P.R. (3d) 56.
28
V. Govindan v. E.M. Gopalakrishna Kone and another, AIR 1955 Mad 391; Eastern Book Company v. D.B.
Modak and another (2008) 1 SCC 1, ¶24.
the photograph of defendant the photographer had used the same model and had asked her to
pose in a similar way as the photograph of plaintiff and the lightning and shades of both the
picture being similar, was held to be a copyright infringement. 29 Second, photographer of the
defendant was asked to recreate an original photograph of tango dancers as closely as possible.
The original photograph met the standards of originality through “the choice, layout and
posture of the subject, camera angles and lighting.”30 A slavish copying of the above elements
in the second photograph was an infringement of the copyright protection exhibited on the
plaintiff’s work. Similarly, a photograph of any painting or drawing is a slavish copy of the
original work and lacks originality.31 Third, the plaintiff actress became cover of a magazine
posing nude with her eight months pregnancy bump. Few months later the defendant director
developed a teaser advertisement of his upcoming movie. In the advertisement a model was
photographed with eight months pregnancy bump and used same lighting and pose as the
photograph of the plaintiff. Later on, some edits were made to duplicate the skin colour and
body configuration as in the plaintiff’s photograph. However, the model’s face was replaced
by the face of the actress of the defendant’s film with a change in the facial expression in both
the pictures. The Court held that the second photo was a parody and was not a violation of
copyright. The Court held that the plaintiff’s photograph was inspired by an original work
which was in public domain since the sixteenth century, hence the protection to the plaintiff
can be granted only on the elements relating to lighting, skin tone, camera angle, body
configuration etc.32

Civil and common jurisdictions have factors such as choices of photographer in respect to
lighting, camera lens, angle of photography etc. to determine originality. It appears that civil
law approach determines originality if the skill and labour of the photographer is applied.33 The
decision in Feist,34 is a transition from US courts applying “sweat of the brow” doctrine to
including “modicum of creativity”.35 Both the jurisdictions have fairly agreed upon
involvement of “intellectual creation” in artistic works.36 However jurisdictions do determine
creativity of photographs by serving a keen analysis of the commercial aspect served by a

29
Gross v. Seligman, 212 F. 930 (2d Cir. 1914).
30
Ateliers Tango, supra note 29.
31
Id., p 109-110
32
Leibovitz v. Paramount Pictures Corporation, 137 F. 3d 109 (2nd Cir. 1998).
33
CHRISTINA, supra note 4, 742.
34
Feist Publication Inc. v. Rural Telephone Service Co. Inc., 18 USPQ 2d. 1275; Eastern Book Company, supra
note 30, ¶33.
35
Id.
36
CHRISTINA, supra note 4, 742.
photograph37. For example, the French courts allowed copyright protection to a photograph
that was taken by a man at the South Pole which could not be determined as artistic but was of
a great commercial value because of the difficulty involved in obtaining such images.

IV. STRUGGLES IN COPYRIGHTABILITY OF DIGITAL PHOTOGRAPHY

For digital photographs to qualify for copyright protection a labour and skill application needs
to be fulfilled. Only when the human input is so low in digital photographs can this be held that
an image is devoid of creativity and lacks requisite originality. But the conflict arises when
copyright is demanded for digitised copies of hand-made images.

Simply, a creation of a digitised copy of an old image cannot result in creation of new copyright
since it lacks application of all essential factors necessary for determining creativity or an
original work. However, in situations where a digital image of an old image is created the
copyright protection of which has expired, can this digitised image claim a new copyright? One
opinion can be that if some specialist skills are used such as to optimise the intricate details,
for example removal of stains and blemishes from the old image then copyright can be
claimed.38 Furthermore, can there be a difference when the digitised image is of a 2D object
and when the image is of 3D image?

In a U.S. case of Bridgeman39 the plaintiff had an art library and possessed exclusive rights on
number of art works converted into digital images. Defendant was marketing images of the
same art-works which were claimed by the defendant to be different. But it was held that
photographs were “simply an image of a work of art” and hence had been slavishly copied
without any intellectual efforts, labour or skill. The court ignored that the images have been
taken after fulfilling the minimum standards of originality such as lighting, angle of camera
etc.

In a UK case of Antiquesportfolio.com v. Rodney Fitch,40 the defendant had used photographs

of several antiques on his website the Court, the case of Bridgeman was cited but was
differentiated on grounds that here the picture was of a 3-D object and according to the court

37
Sports Club plc v. Inspector of Taxes [2000] STC (SCD) 443.
38
Intellectual Property Office, Copyright Notice: digital images, photographs and the internet, November 2015,
available at
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/481194/c-
notice-201401.pdf.
39
Bridgeman Art Library v. Corel Corporation, 25 F. Supp. 2d 421.
40
Antiquesportfolio.com v Rodney Fitch, [2001] F.S.R 23.
factors such as “angle, lighting, focus…at a very basic level together with focussing on other
specific details” is sufficient to establish copyright protection.

The two cases have a conflicting opinion and does it mean that some images of 2D art work
will be considered a slavish copy since according to courts 3D art works have more angles and
hence originality can be established whereas an image of a 2D art work cannot be copyrighted.
The position in Bridgeman41appears to be wrong in accordance to English law.42

However, according to the common law jurisdiction copyright protection can be given only to
works which have some inputs of author’s “intellectual creation”.43 Thus, a mere touch-up of
an old image may be sufficient to qualify as an original work so far touch-up can qualify as
application of skill, labour and intellectual creation. There are no set parameters to decide what
amounts to originality and depends on the factual matrix of the cases.

V. CONCLUSION

In UK & India it is very rare that a photograph is denied copyright protection on grounds of
lack of originality since a very low threshold of originality is required.44 Decisions of the
photographer like angle of the photograph or the exact moment when to click a picture can be
sufficient requirements which fulfil common law threshold of an original work. In some other
civil law countries focus is shifted to creativity through application of mind.45 Whereas there
are few other countries which emphasis on novelty and innovation in the work.46 Since the
countries are not in consensus with any common approach it becomes difficult to ascertain the
protection of photographs, including digital, uniformly across the globe.

41
Bridgeman, supra note 41.
42
CHRISTINA, supra note 4, 126.
43
Intellectual Property Office, supra note 38.
44
CHRISTINA, supra note 4, 108.
45
United States, Czech Republic and other Common Law Countries; CHRISTINA, supra note 4, 140.
46
Middle East countries; CHRISTINA, supra note 4, 141.