Securing Original Photographs

Introduction

Photographs are under the subject matter of copyright which means that photographs are artistic works that attract copyright protection. The author of an artistic work, in case of a photograph, is the author who has originally captured the photograph, and is deemed to be the original owner of the photograph and thereby made the holder of copyright.

Copyright protection of photographs in India

In India, photographs enjoy copyright protection under Section 2 (c) i of the Copyright Act, 1957, which mentions the certain types of artistic works granted copyright protection in India. In USA, the person who presses the shutter button of a camera becomes the copyright holder of the photograph, in certain cases the person who sets up the camera has also been held as the copyright holder of the photograph.

However, nowadays due to the advancement of technology photographs by different photographers are made available to a worldwide audience through the internet. Often such audience, who can easily access any photograph, use these photographs after making certain modifications to them through photo-editing software like Photoshop, Adobe and many other photo modification tools. This act is often done without the prior consent or permission of the copyright holder or the photographer of the picture. Thus, the question arises if such use attracts copyright infringement. If the photo taken without any prior consent is edited and used for a commercial benefit, then it might attract copyright infringement. There are certain exceptions to copyright infringement that can be used as a shield in such cases. Firstly, the exception of fair use. One has to check if the way in which the photograph is being used falls within the scope of fair use. In USA, the doctrine of fair use means that parts and portions of a copyrighted work can be used according to the nature and characteristics of such works which will be originating out of the use of the copyrighted original work and such use would not be considered to be copyright infringement. Fair use is mostly cited in cases where someone criticizes an author’s books or literary work.

Evolution of copyright protection of photographs

In the case of Cariou Vs. Prince, a famous French photographer, Patrick Cariou had published his photographs in a photography book and Prince, an artist, had appropriated some of these photographs and claimed that his use fell under the doctrine of fair use as now the photographs through his artistic touch have gained a new meaning. However, the photographer claimed that it was a case of copyright infringement. In 2011, the district court ruled in favour of Cairou but appeal was filed. This time, in 2013, the judgement in favour of Cairou was overturned. The court held that out of all the photographs appropriated by Prince, 25 of them fell into the exception of fair use under the copyright law as the artworks made by Prince had different expressions and meanings from the original photographs of Cairou and copyright protection is granted only to expressions of ideas and not to the ideas. The aesthetic value of the photographs had completely changed due to the artistic work created by Prince and the works of Prince also had different colour palette, presentation, media etc, when compared to the original photographs. Lastly, the court pointed out that the target audience of the photographs and the artistic works were different in nature and no evidence could be provided to show that the artistic works of Prince had negatively affected the market for the photographs of Cairou. Hence, the use of Cairou’s photograph by Prince fell under the exception of fair use and would not be an instance of copyright infringement.

If the artistic works derived out of the original photograph were not that different from the original photograph and negatively affected the commercial benefit of the photographer steaming from those photos, then it would not be a permissible use of the copyrighted work under the copyright law.

Both the Berne Convention and the TRIPS Agreement provides for the concept of fair use hence, India being a signatory to both included the concept of fair use in its Copyright Act, 1957 through the exceptions to copyright infringement. In India, these exceptions which result in fair use occur when copyrighted original works are used for personal use i.e., in a non-commercial way, to criticise or review the work of an author, for the benefit of public or for reporting any current affairs or news.  Under the Indian law, the copyrighted works like literary or artistic works can be reproduced for educational purposes too. They can also be reproduced in judicial proceedings. Hence, if the copyrighted photograph is being used for any of these above mentioned purposes then they qualify as fair use.

The Indian law does not define fair use or fair dealing anywhere however, in cases were a copyrighted work has been used and can be proved to be falling into these exceptions, the occurrence of copyright infringement can be prevented.

In the UK, the concept of fair dealing or fair usage is put into use to determine the uses of a copyrighted work without the prior consent of a copyright holder which do not qualify as copyright infringement. Fair dealings also bring artistic works like photographs into its purview. When photographs are used without the photographer’s consent or licensing in newspaper reports, then it does not fall into fair dealings even if other copyrightable subject matters used for newspaper reports without the author’s prior consent qualifies as fair dealings under the UK law.

Conclusion

In conclusion, it is safe to say that if a photograph which is an original work of a photographer, i.e, copyright protected, is derived from the internet and edited before use it might not attract copyright infringement if it does not negatively affect the market or the commercial benefits reaped by the photographer through his photograph, has a different target audience, has become very different from the original work when looked at its aesthetic or artistic value and or fits into any of the other exceptions mentioned above then it will fall into fair use or fair dealing depending upon the jurisdiction.