Copyright in Product Photography Commissioned for E-Commerce: Ownership, Licensing and Commercial Use
Introduction : Imagine a brand commissions a photographer for a weekend to shoot its new product range. The images are further uploaded to the brand’s website. Six months later, the same photographs eventually appear on third-party e-commerce platforms, in paid Instagram advertisements, in a distributor’s brochure and in a new agency’s pitch deck. No one appears to have checked whether the original arrangement permitted any of these uses.
In e-commerce, a photograph rarely remains confined to the page for which it was commissioned. An image created for a single catalogue listing may further be used on other marketplaces or in digital advertising or social media etc. Each subsequent use further raises its own distinct questions: Who owns the copyright? Or whether the marketplace may display it, or whether the brand may continue using the images and obtain the original files.
Under Section 17(b) of the Copyright Act, 1957, where a photograph is taken for valuable consideration at the instance of a person, that person is generally considered the first owner of the copyright in the absence of an agreement to the contrary. This default position is not a substitute for a well-drafted contract. An assignment under the scope of Section 19 prescribes defaults on duration and territory that can fall short of what the business intended. Where rights are licensed, the scope of use depends on the precise wording of the licence under Sections 30 and 30A. The involvement of an advertising agency adds a further layer of contracts, each of which must be checked to confirm that the rights actually passed down to the business.
Therefore, a business cannot rely on the statutory default alone. It needs to establish, in writing and before publication, what it owns, what it is licensed to do and for how long.
Legal Provisions
Copyright Protection in Product Photography
Section 2(c) of the Copyright Act, 1957 includes within the meaning of an artistic works irrespective of whether they possess artistic quality. Accordingly, a product photograph does not have to qualify for protection. An original image of a handbag or cosmetic product may also attract copyright provided it satisfies the requirement of originality.
Furthermore, the scope of originality was considered by the Supreme Court in the case of Eastern Book Company v. D.B. Modak (2008), 1 SCC 1, where the Court rejected the view that the expenditure of time, labour or money is by itself sufficient to establish originality. Instead, a work must reflect the author’s independent effort, skill and judgement accompanied by a sufficient degree of creativity; therefore, the photographer’s choices concerning lighting, perspective, composition, styling and background may be relevant in determining whether the resulting image contains original expression.
Copyright protection arises automatically when an original photograph is created and where registration is not a prerequisite. Registration may serve as useful evidence in an ownership dispute. Under Section 48 of the Act, entries in the Register of the Copyright constitute prima facie evidence of the particulars recorded in it and therefore this may further constitute an asset for a business or a photographer in establishing a claim although the entry does not make every possible dispute about ownership or further infringement conclusive.
For businesses, the more immediate concern is often not whether a photograph can attract copyright but also who holds the rights to further use it. The person who takes a photograph is often considered as its author under the mandate of Section 2(d)(iv) of the Act. However, authorship and first ownership must be considered alongside Section 17; therefore, a business should avoid assuming that payment for a photoshoot automatically gives it unrestricted rights to reproduce, modify, or reuse every resulting image.
A single product listing may therefore require consideration of several distinct rights as follows:
copyright in the photograph,
trademark rights in the brand name and logo,
design rights in the product, if the design is registered,
permissions for anything else in the frame, such as models, props, artwork or locations.
Therefore, for businesses that refuse product photographs across e-commerce platforms, websites, social media and advertising campaigns, checking these rights before publication or reuse is considered as an important part of copyright compliance.
Who Owns Copyright in Commissioned Product Photographs?
Section 17 of the Copyright Act, 1957 provides that the author is the first owner of copyright. For photographs, Section 2(d) identifies the person who takes the photograph as the author. However, Section 17(b) creates an important exception for commissioned photographs. Where a photograph is taken for valuable consideration at the instance of another person, that person is generally the first owner of copyright unless the parties have agreed otherwise.
Assignment of Copyright: Section 18 and 19
A business that requires ownership of the photographs can consider obtaining an assignment of copyright. Section 18 of the Act further permits the owner to assign copyright wholly or partially, which is subject to the statutory requirements. Section 19 sets out the formalities governing such an assignment.
For an assignment to be considered valid it must be in writing and must be signed by the parties or by their duly authorised agent. It should identify the photographs concerned and specify the rights being transferred or the duration and territorial extent of the assignment and royalty and other considerations as applicable.
Under Section 19(4), an assignment may be deemed to have lapsed in respect of rights that the assignee does not exercise within one year unless the agreement provides otherwise. Section 19(5) presumes a duration of five years where the assignment does not specify one, while Section 19(6) presumes that the territorial extent is limited to India if no territory is stated. These defaults can create difficulties for a business that expects to use product photographs over an extended period or across international markets. Addressing the duration, territory and intended uses expressly can help avoid uncertainty.
Licence to Use Photographs: Sections 30 and 30A
An assignment is not the only option available to a business. If the photographer intends to retain copyright, the business may instead obtain a licence specifying how the photographs can be used. Section 30 permits the copyright owner to grant a licence in writing, while Section 30 A applies the relevant provisions of Section 19 to licences with the necessary adaptations and modifications as required.
Therefore, the scope of license is therefore as important as the decision to obtain one. A licence may permit use on a business’s own website but leave uncertainty about paid advertising, social media campaigns, or third-party marketplaces. Similarly, a business working with distributors or advertising agencies should check whether the licence permits the necessary sharing or sublicensing of the images. Such permissions should be expressly addressed rather than assumed to follow from the original engagement.
Legal Analysis
Ownership of Photographs Commissioned from Freelancers and Agencies
When product photography is arranged through an advertising agency copyright ownership cannot be determined merely by identifying who paid the invoice or received the final images. Section 17(b) of the Copyright Act, 1957 provides a default rule for photographs taken for valuable consideration at that instance of another person. However, the application of that would depend on the actual commissioning arrangement and any agreement to the contrary. rule depends on the actual commissioning arrangement and any agreement to the contrary.
Picture a clothing brand that hires an advertising agency to further carry out the shoot. The brand's agreement with the agency may establish the rights the agency is required to provide by the arrangement with the photographer must be examined. Therefore, it is pertinent to establish who commissioned the photographs and in what capacity the agency acted and whether the relevant agreements are consistent with one another.
Reuse of Photographs Across E-Commerce Marketplaces
Product photographs are frequently reused across a business's website, mobile application and third-party marketplaces. Such reuse may raise questions concerning the scope of the rights granted under the original commissioning agreement. Where a licence permits use only on a particular website, expanding the photographs' use to additional platforms may require further permission. Conversely, an assignment or sufficiently broad licence may permit reuse across multiple channels, subject to its terms.
The agreement should identify the intended platforms and address use by distributors, resellers, affiliates and marketplace operators. It should also clarify whether the business is authorised to grant platforms the permissions necessary to host, reproduce and display the photographs. This is particularly important where marketplace terms require sellers to grant certain rights to the platform. A business should ensure that it has the necessary authority to grant those permissions rather than relying solely on possession of the image files.
Advertising and Social-Media Promotion
The commercial use of product photographs often extends beyond the original catalogue. Businesses may subsequently incorporate the same images into paid advertisements, social-media campaigns, email newsletters, promotional banners and influencer collaborations. Whether these activities are authorised depends on the scope of the assignment or licence. Permission to use photographs for online listings should not automatically be treated as permission for every subsequent commercial application.
A commissioning agreement should therefore specify the intended uses, including organic and paid social-media content, digital advertising, promotional materials and campaigns conducted through third-party agencies. Where additional creative material is incorporated into an advertisement, the business should separately verify the relevant rights in that material.
Cropping, Editing and Digital Adaptation
Product photographs frequently require technical adjustments to satisfy different platform requirements. Common changes include resizing, cropping, compression, colour correction, background replacement and the addition of promotional text. Section 14 recognises adaptation as one of the relevant exclusive rights in relation to artistic works, and Section 57 may be relevant where a modification falls within the scope of the author's special rights as set out in that section.
The position is entirely dependent on the nature of the modification, the contractual rights and the circumstances. A simple technical adjustment is not in itself an unlawful treatment of a work. The company should however be clear as to its right to make the modifications that are reasonably necessary for commercial use.
The agreement should also differentiate between standard formatting changes and those which may be deemed to be a significant change and which would therefore require prior approval. Edits must not in any way create a misleading representation of the product, especially where the customer is relying on the photograph to assess the colour, texture and/or appearance of the product.
Ownership and Access to Source Files
Copyright ownership and possession of the digital files are two separate things. It's entirely possible for a business to be entitled to use the finished photograph without having in fact obtained the RAW files, the layered editing files, the alternate shots or the unused photographs that were created during the shoot. This distinction can become important when the business changes agencies, changes product packaging or needs to adapt the existing images for a new campaign. If they don't have access to the source files then they're going to have to commission some further work or go down the route of re-creating the images at additional cost.
The commissioning agreement should set out whether the photographer is to deliver the final images only or is also to provide the RAW files, the editable project files and any other materials agreed. It should specify the file formats, delivery dates, any additional charges and any obligations in respect of storage and retention. Where access to the source file is absolutely essential to future operations the requirement should be formally negotiated at commissioning rather than left to some informal understanding.
Continued Use Following Termination
The termination of a relationship with a photographer or an advertising agency in no way automatically means that the existing product photographs can no longer be used. Where copyright has been properly assigned the termination of the service relationship will not automatically reverse that assignment. A licence may however contain an expiry date or termination clauses which would impact on future use. The position will therefore have to be looked at on the facts of the particular agreement rather than assumed to be the same in all cases.
It is essential that the business distinguishes between the termination of services and the continuation of the IP rights. The contract must deal with the treatment of existing marketplace listings and advertising, the delivery of any outstanding files or the transfer of the project materials to a replacement agency and any other restrictions that are in place on termination.
Relevant Case Laws
Vicco Laboratories v. Art Commercia Advertising Pvt. Ltd. (2001) 7 SCC 81: The Supreme Court was dealing with a copyright claim in respect of the TV serial Yeh Jo Hai Zindagi. Vicco, the sponsor of the serial, was attempting to establish a copyright in the serial. The Court dismissed Vicco's claim in the circumstances of the case, in particular in the absence of any material to establish that the production company had in fact created the serial as Vicco's agent or employee or that the statutory requirements for first ownership had been met. The sponsorship arrangement in itself was not sufficient to establish ownership.
M/S. Dia Health Foods Pvt. Ltd. v. M/S. Diabliss Consumer Products Pvt. Ltd. (2008) 1 SCC 1: The Madras High Court was dealing with the distinction between commissioned work and ownership under the Copyright Act in the context of the creative material in issue. The judgment makes it clear that the rule in statute regarding works commissioned for valuable consideration is not a blanket rule which applies to all forms of creative work. It will depend on the nature of the work and the particular clause of s17 which is in issue. The judgment also touches on the issue of equitable rights and implied permission in the case of commissioned work.
Conclusion
Product photography is a major commercial asset in e-commerce and its value is dependent on the legal rights being in place at the point of commission. The Copyright Act, 1957 has specific provisions for photographs commissioned under Section 17(b), and there are several other relevant sections covering assignment and licensing (18, 19, 30 and 30A) as well as exploitation and subsequent treatment (14 and 57).The legal position can't be determined just by looking at who paid for the shoot or who has the actual image files.
It is important to look at the circumstances of the commission, the terms of the agreement, the scope of use permitted and any relevant statutory rights.For the business end of things, the priority is to get clear rights in place before publication. The agreement should be designed with the potential for market expansion, advertising and social media use, routine editing, source file requirements and the consequences of termination in mind. A properly structured commissioning process will go a long way to securing commercial continuity and minimising disputes between the business, the photographer and the agency.
Ultimately, copyright management in product photography should be an integral part of your e-commerce business' wider IP strategy. If you've got a clear understanding of who owns what, what the licensing terms are and what the deliverables are from the very beginning, then you can use your visual assets with a great deal more legal certainty and with far less operational disruption.
Author: Ishika Mandal in case of any queries please contact/write back to us via email to content@khuranaandkhurana.com or at Khurana & Khurana, Advocates and IP Attorney
Endnotes
The Copyright Act, 1957, § 2(c).
The Copyright Act, 1957, § 2(d).
The Copyright Act, 1957, § 14.
The Copyright Act, 1957, § 17(b).
The Copyright Act, 1957, § 17(c).
The Copyright Act, 1957, § 18.
The Copyright Act, 1957, § 19.
The Copyright Act, 1957, § 19A.
The Copyright Act, 1957, § 30.
The Copyright Act, 1957, § 30A.
The Copyright Act, 1957, § 48.
The Copyright Act, 1957, § 51.
The Copyright Act, 1957, § 57.
Eastern Book Company & Ors. V. B.B. Modak & Anr. (2008) 1 SCC 1.
Mannu Bhandari v. Kala Vikas Pictures Pvt. Ltd., AIR 1987 Del 13(India).
Amar Nathv. Union of India & Anr., 2005 (30) PTC 253 (Del).
Raj Rewal v. Union of India CS(COMM) 3/2018 (Del. HC May 28, 2019) (India).
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