IP Rights in Photography: Can You Post Other’s Pictures?

Introduction : Nowadays, in our digital era, photos get dispersed at a speed of lightning - in social media, blogs, and websites, and news feeds as well. But to those involved with creation, it leaves a question to both the creators and the users: can you just repost? The answer is far from simple. Photography overlaps with copyright, image rights (or publicity rights), privacy, licensing and social media conventions. To law students, practitioners and other creators of digital content in India, it is important to know how those rights are exercised in order to prevent copyright violation and deal with risk. The blog will also map the legal system in India (including comparative background), describe the fundamental concepts, discuss recent and landmark judicial cases, and give practical advice to users, creators and platforms.

Legal Framework in India for Photography and Copyright

Photographs as “artistic works” under the Copyright Act, 1957

• The Act has defined artistic work as paintings, drawings, engravings, photographs, sculptures etc. A photograph, therefore, is subject to the protection of copyright as soon as it is created, registration is not mandatory.

• The Act also grants the copyright holder of an artistic work a number of exclusive rights: the reproduction of the work in any material form, issuing of copies, communication to the whole world, etc.

• The Act also provides the duration of copyright protection. For a photograph that is being published in India, the term is 60 years after the onset of the calendar year following the year the photo was first published.

Ownership of Copyright in Photographs

• Basically, the copyright of photographs is owned by the person who created them.

• The Act defines who is the “first owner” of copyright. As a rule, the first owner is the author (here, the photographer) unless there are certain exceptions.

In the case of photographs following are the exceptions:

• When the photograph is captured “for valuable consideration on behalf of any person”, then such person (the one who commissioned the photograph) may be the first owner unless otherwise provided in the agreement.

• In case the photo has been captured by an employee “in the course of his employment under a contract of service or apprenticeship”, then the employer can be considered as the first owner unless otherwise provided in an agreement.

Exceptions: Use Without Permission

The Act also enlists some exceptions (often termed as “fair dealing”) which allow some limited uses without the copyright owner’s permission – for e.g., use of the work for criticism, comment, review, news reporting, or producing a photograph of something permanently situated in a public area.

Can You Post Someone Else’s Photograph?

Unlicensed Sharing of Photographs Online

When you find a photograph on the internet (that of another person) and publish it without his/her consent, you risk infringing the copyright of the photographer (owner). The exclusive rights that the owner has under this Act are reproduction, distribution, and communication to the public. The use of the image could be infringing if it is done without a licence or assignment of the photographer/owner.

“Fair Dealing” or Authorised Use

Some of the uses can be allowed under Section 52 of the Act: e.g. capturing a photograph of a sculpture in a public location and publishing it (freedom of panorama), or using a photograph in criticism/review or reporting current events. However, “fair dealing” is narrowly defined in India and does not allow the massive commercial exploitation of copyrighted photographs without license.

Commissioned or Hired Photographs

When it comes to event photography (e.g. wedding, corporate photos), the photographer generally retains the copyright, unless it is clearly assigned/licensed. Payment alone doesn’t transfer copyright. One article of recent notes: Wedding photographs can be regarded as the work of the photographer and he being the creator holds copyright over those photographs.

Use of Celebrity or Influencer Photographs

Even if you own the copyright in a photograph of a celebrity, but the celebrity holds a personality/image right claim, in cases of commercial use of the image without his/her consent. As an illustration, the company cited by K&K said: When it comes to image rights, Indian courts have restored the law of trademarks, passing off and copyright.

Social-Media Reposting and User Generated Content

Social-media users frequently repost the images found on the internet. This raises the risk - although the original posting may have been publicly visible, the underlying copyright owner might not have licensed for derivative content, reposting or commercial use (e.g. in a commercialised channel).

Judicial Trends

Although there are a limited number of high-profile Indian court cases that focus solely and publicly on the issue of “posting other people’s photographs”, a number of significant related cases and commentary are applicable.

Although it is not directly related to posting, in the case Amar Nath Sehgal v. Union of India, also called the filmmaker case, moral rights under the Copyright Act were upheld. It implies that an author/photographer can have objections to his/her image being distorted or misused.

In India courts have realised that the photographer (as author) is the first owner of the photograph, unless the photograph was taken for valuable consideration or employment.

On freedom of panorama, although there is no particular landmark case in respect of “panorama photography posting”, industry- it is observed that section 52(t) and (u) permit certain photographs that are taken in public places. India has no such law as freedom of panorama as in Europe; therefore, there is no uniformity as to whether the photography is lawful or not.

Considering the relative scarcity of Indian rulings on the high-profile cases on social-media reposting of photographs, the focus lies on the contract/licensing, fact-specific terms and coverage of copyright + personality rights.

Conclusion

Although taking and posting casual photographs might seem easy in this social-media era, the law involved is not a mere child play. Whether you are a creator, a user, or a platform you must navigate copyright (creation and ownership), image/personality rights and licensing obligations. In India the most important question is generally: who is the photo created by? have they licensed it? Is your use within a licence or exception? Posting the photo of another person, without a definite answer, may put you in infringement liability, takedown liability or commercial claims. On the other hand, creators and platforms that embrace transparent contracts, licence-structures and understanding of rights of usage are in a position to utilize photographs in a secure and profitable way. By staying aware of these matters, one can make sure that when they post/publish photographs, they are doing it with a conscious mind and respecting rights of others.

Author: Akanksha Tomar 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