How Influencers and Content Creators Can Protect Their Copyright in India

Introduction

Digital content has transcended beyond self-expression for influencers and content creators. Video, reel, photo, podcast, script and caption can be viewed as commercial assets that provide revenue generating opportunities, collaborations and long-term brand value. Yet despite this fact, copyright law is still often misunderstood in the creator economy.

Among the many misconceptions regarding copyright law is the belief that social media sites keep ownership over the material users upload to their platforms and/or that simply giving credit to the original creator provides legitimacy to the use of that material. Neither belief is legally correct. Under Indian copyright law, the treatment of all user created content on a social media site is the same as it would be for a non-social media created piece of creative work. The law protects all user created content as intellectual property.

Copyright protection arises automatically at the moment of creation and fixation (i.e., it does not require registration), when an original piece of creative work is created and fixed in any tangible format (e.g., written, recorded, filmed or uploaded). Copyright protection exists as long as there is a copyright protected work regardless of the terms and conditions of the social media platform, the number of followers, or whether the creator has made money from the creative work or not.

What copyright provides for creators and influencers

Under Indian law, copyright law provides for the protection of original creative expressions rather than protecting abstract ideas. This distinction is vital for all creators who are working in a digital environment that is often overloaded with similar digital content.

The Copyright Act of 1957 provides the following protections under Section 13[1] for a number of different types of works commonly created by influencers:

• Videos and Reels: YouTube videos, Instagram Reels, vlogs, short films, and any edited clip will be treated as a cinematographic work.

• Photographs and Other Visual Works: Photographs, thumbnails, digital illustrations, and graphic designs will all be treated as artistic works.

• Music and Audio: Copyright protection will be afforded to the following: original songs and background music, podcasts, voiceovers, and/or sound recording.

• Written Works: Copyright protection will apply to the following types of works: scripts, blog posts, captions, newsletters, tweets, and e-books.

The copyright law protects the expression of an idea; therefore, the expression, either the manner the script is created, how the video is structured, how the content is edited, how the content is narrated; or how the content is creatively sequenced are covered by copyright law. Therefore, if an influencer creates a travel vlog, or business motivational video, and someone else uses the same video footage, how the video is structured/flowed together, or the same audio narration, then that is referred to as an infringement of copyright in India.

The Indian courts apply a very low standard of originality. As exemplified by the case of Eastern Book Company v. D.B. Modak, the Supreme Court has held that in order to hold a work to be original, the creator must have exercised some skill and/or judgement in the creation of his or her work rather than merely having put forth the number of hours associated with creating the work[2].

[Image Sources: Shutterstock]

Who Owns Influencer’s Content? Understanding Copyright Ownership

Influencers own their own content from an intellectual property perspective, however, there are a few exceptions that need to be understood with regard to who owns the content they develop.

As a general rule, the author/creator is considered the initial owner of copyright with respect to a particular work. The Copyright Act, 1957 specifically states implemented by Section 17[3] of the Copyright Act, 1957 that when a creator has independently developed, captured, edited and published content, they will hold the copyright in that work.

There are a few other exceptions which can change the copyright ownership of an influencer's content:

Works Created Within Employment

If an influencer develops content as part of their employment, their employer would typically be the first owner of copyright in that work, unless the employment contract states otherwise.

Brand Collaborations / Commissions

Most brands will believe that by engaging with an influencer to create a piece of content that the brand will own that content, however, this is legally incorrect. Ownership of the content rests entirely on the agreements and contracts between the influencer and the brand/advertiser, regardless of how the influencer developed the content. In other words, without an assignment in writing from the influencer to the brand, the copyright will remain with the influencer.

The Requirement for Written Agreements for Assigning Copyright

When someone wishes to assign or transfer copyright to another person or entity, that transfer must be in writing, signed by both parties. This requirement for a written agreement stems from both the Copyright Act and the principles of the Indian Contract Act, 1872. Oral agreements and informal assurances are not legally valid[4].

In a commercial sense, it is usually in a creator's best interests to keep copyright ownership and only grant limited licenses to the Company for specific, defined uses of the created content.

Copyright Registration in India: Strategic, Not Mandatory

In India, copyright registration is not a legal requirement. However, copyright law grants automatic rights upon creation. Still, registering copyrights can help you with additional advantages such as:

• The Copyright Office issues certificates that serve as prima facie proof of ownership and date of creation.

• Courts frequently consider registration records when deciding claims involving Copyright infringement.

The protection you receive through copyright registration is particularly beneficial for:

1.     High value or viral type content (influencers),

2.     conducting paid classes or monetised video series (content creators),

3.     releasing music, and

4.     creating brand defining visual assets.

The Copyright Rules, 2013[5] govern the registration process, which requires submitting an application, paying a fee, and submitting the material for which you seek copyright registration. While registration is not essential for every post, having your copyrights officially registered will greatly enhance your ability to enforce them.

Platform Specific Remedies When Content Is Stolen

YouTube

YouTube has an extensive copyright enforcement system in place for creators. Creators can use:

• Content ID system which automatically identifies unauthorized reuploads

• Manual takedown requests via YouTube Studio

If there is enough evidence of a copyright infringement, it may generate copyright strikes against the channel. If a channel receives three copyright strikes, the channel may be terminated. YouTube’s copyright enforcement methods comply with the requirements of intermediary liability in the United States and international copyright enforcement standards.

Instagram (Reels and Posts)

Instagram has long been a major source of content theft; with many users creating reposts or aggregation accounts for stealing content. Content creators on Instagram have the right to report copyright infringement on their original work through the following process:

1. Open the infringing post or Reel

2. Select the report option - intellectual property - copyright

3. Give a link to both the original content and the infringing content on Instagram

There is one important legal distinction: giving credit to the original creator does not constitute permission to republish that content. An individual must have the permission of the original creator (i.e. giving permission to use another creator's video DOES NOT mean that they can also use the music from the original creator's video) for them to be legally permitted to republish another creator's original work. Including a remix of another creator’s video from Instagram’s music or remix feature does not give you copyright ownership of that video. If you download and reupload another creator’s Reel, you are infringing copyright.

Websites and Other Third-Party Platforms

When a creator finds their work copied on a website or blog, they can send a takedown notice (also known as a DMCA notice) to the creator of the website or the publisher or hosting company that hosts the copied content. Many websites and other online platforms operate under notice and takedown systems similar to the DMCA. Search engines have also created certain methods for removing infringing content from search results.

Fair Dealing vs Fair Use: What Indian Law Permits

The concept of fair dealing (as endorsed by Indian Copyright Law) is more restrictive than the relative width of fair use as endorsed by US Copyright Law.

In India, Section 52 of the Indian Copyright Act 1957 permits limited exploitation of works protected by copyright for private and personal use, criticism or review, and reporting on current events[6].

The basis of fair dealing is determined on the basis of a number of factors including, but not limited to, what is the purpose of the use, what extent the relevant work has been copied and how much of a commercial impact there is due to the use of the work. In Civic Chandran v. Ammini Amma[7] and Super Cassettes v. Hamar Television[8], the Indian courts explicitly determined that an attempted claim of fair dealing would be negated in circumstances where a copyright owner’s work is to be commercially exploited or excessively copied.

Thus, by and large, reposting of Ingram's Reels, monetised edits, or aggregation pages will not satisfy the statutory fair dealing requirements.

Instagram’s Blanket Music Licence: Scope and Limitations

Instagram has a blanket license for all of its in-app music, which includes the right to put music in your videos (Reels). However, this blanket license only applies to the audio portion of your Reels.

The following should be noted:

• Music is licensed, but not video.

• Music is only licensed for use on the Instagram platform.

• Music may be excluded from commercial and sponsored content.

Therefore, although the music you have used in your Reels may be licensed, the video portion of your Reels is still under copyright protection. As a result, any time you re-post someone else's Reel, you are infringing that creator's copyright regardless of whether that creator has a license to use the music.

Using Music in Sponsored or Commercial Reels

A common misconception amongst creators is that they are free to use trending audio tracks to create content associated with brand partnerships. This belief could lead to legal issues for the creator.

Typically, a Reel that is sponsored or used in an advertisement will be excluded from the blanket music license provided to Instagram users as a part of the Instagram platform. Therefore, brands want to have a separate agreement with an artist to use the song in their advertising. If a creator uses music provided by the Instagram platform to create sponsored content, both they and the brand may be subject to infringement claims.

If you are creating commercial content, it is best to use royalty free music or music that is covered by an express license.

Global Perspective: Protection of Creators Across Jurisdictions

USA

Copyright Protection exists under the U.S. Copyright Act. Enforcement is primarily driven by online platforms under the DMCA. Fair Use is available but does not cover the wholesale reproduction of material. Several States also have rights of publicity and personality protections.

UK and EU

The UK Copyright, Designs and Patents Act of 1988 automatically protect all works and establishes strong moral rights to creators. EU Digital Regulations impose strict obligations on platforms to remove infringing material.

Creators from India are entitled to the same creator rights as provided under international treaties; however, the process for enforcement varies from country to country.

AI, Deepfakes, and Personality Rights

In India even though Copyright Laws do not protect the works of artificial intelligence produced by machines, if you are using an Author's name, image, voice or likeness without their permission you could be infringing on their personality and publicity rights. Courts have upheld the personality and publicity rights of the authors in the case of Amitabh Bachchan v. Rajat Nagi[9] and Anil Kapoor v. Simply Life India[10] including granting injunctions against unauthorised digitally exploited works. This indicates that the courts may be willing to continue to protect identity-based rights (including personality and publicity rights) for people in the digital economy.

Copyright law may not apply and alternatives for enforcement include privacy, personality, or passing off laws.

 

Proactive Protection Strategy for Influencers

• Register commercially valuable works

• Use written contracts for all collaborations

• Prefer licences over outright assignments

• Watermark content and retain original files

• Use platform rights management tools

• Act promptly against infringement

Conclusion

Digital platforms provide tools for enforcement purposes only; they do not eliminate or replace statutory rights afforded to creators under copyright laws. To protect creators' income, reputation and future value of their brands, there must be a legal strategy that incorporates proactive measures. For those creators who wish to grow sustainably, understanding copyright evolution and its use in today's world (not just in revenue generation but also as a form of personal identity) will be an essential foundation.

Author: - Aman Raj, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at  Khurana & Khurana, Advocates and IP Attorney.

[1] Copyright Act, No. 14 of 1957, § 13 (India).

[2] E.B. Co. v. D.B. Modak, (2008) 1 SCC 1 (India).

[3] Copyright Act, No. 14 of 1957, § 17 (India).

[4] Indian Contract Act, No. 9 of 1872 (India).

[5] Copyright Rules, 2013 (India).

[6] Copyright Act, No. 14 of 1957, § 52 (India).

[7] Civic Chandran v. C. Ammini Amma, 1996 SCC OnLine Ker 63

[8] Super Cassettes Industries Ltd. v. Hamar Television Network (P) Ltd., 2010 SCC OnLine Del 2086

[9] Amitabh Bachchan v. Rajat Nagi, 2022 SCC OnLine Del 4110

[10] Anil Kapoor v. Simply Life India, 2023 SCC OnLine Del 6914