IN WHOSE NAME AUTHORSHIP WOULD VEST IN A PHOTOGRAPH

INTRODUCTION

India being a signatory of Berne Convention which grants protection to both literary and artistic work which includes photographs. The convention under Article 2 provides protection to “every production in artistic domain” which includes photograph also. The term of protection granted is 25 years from date of publishing of photos. The member states have been given liberty to determine term of protection.  The Copyright Act,1957 defines “artistic work as a painting, a sculpture, a drawing, (including a map, chart or plan) an engraving or a photograph whether or not any such work possesses artistic quality”. Thereby we need to understand that here quality of the photograph is not a requirement i.e. a photo can be good or bad but it must have some requisite skill and effort. 

Under the copyright law, there is a requirement of minimal level of creativity for a work to be considered eligible for copyright law. If we consider this aspect in context of photograph, it must be a work of some creative inputs of the photographer. For example, the light adjustments, angle set for taking photograph and particular time frame, all these will come under the ambit of creative choices of a photographer. In Jonathan Mannion v Coors Brewing Co (2006), to determine whether photo would be subject of copyright protection- factors such as lightening, timing, frame etc.  were considered to determine whether the photograph is copyrightable or not.

Issue 1 – What is the threshold of creativity required for a photograph to be considered copyrightable?

Questions like person who compose the photo or the person who finally press the button must be considered author? The composing person basically sets the light; frame etc. i.e. gives creative input whereas pressing just the button is just a mechanical act. The concerned issue arises because a photograph is machine made. India adopts the Canadian test of ‘skill and judgement’ wherein meaning of skill is that something which is not trivial and judgement is something more than labour and capital. Applying the same principle in case of photograph, it must just not be a mere photo lacking creativity or over simplistic photos. But it must involve certain level of creative inputs of the photographer.

In Burrow Giles Lithographic co v Sarony (1882) , marks an event wherein court considered that even though the photos are produced by a device called camera, still photographs can be accorded copyright protection. The Court emphasized on the artistic choices made by the author i.e. photographer in clicking the picture. Even though a machine is being used to click a machine is used to click a picture, still a photographer plays a vital role in output and thus he can be considered author under copyright law.

In SHL Imaging V. Artisan House. 117 F. Supp. 2d 301 (S.D.N.Y. 2000), Court denied the defendant assertion that “plaintiff merely photographed the picture frames one after another, all in the same straightforward manner faithfully to copy them to the medium of film. Court said that it still did not deprive the photographer of copyright in the photos. which were sufficiently original by virtue of the expressive choices regarding lighting and shadow

Issue 2 – Who is considered as author of the Photograph?

 Section 17 deals with aspect of distinction between author and owner of the work. It lays down generally authors are owners of the work. It our context it means that If the photograph is taken independently or as a freelancer without any contractual agreement, the photographer will be considered both author and owner.

There are certain exceptions laid down under section 17 of Act itself as t when an author of work is not considered as owner. If the photograph is taken under a course of employment i.e. is commissioned by someone for a valuable consideration, the person who has commissioned the photograph would be deemed to be the first owner of the copyright. This is covered under section 17(1) (b) of Copyright Act. For example, the photographs of Katrina and Vicky Kaushal wedding was clicked by Joseph Radhik, an International award winning photographer and his team. The work was commissioned by Katrina and Vicky and it was done on basis of a contractual agreement whereby a valuable consideration was to be paid to Joseph Radhik. The ownership in the photograph vested in Katrina and Vicky and thereby the put certain conditions “No photography, No sharing pictures on social media, All photos to be published only after approval from wedding planners, No reels or videos can be made at the wedding venue.” Thus, here although the author is Josheeph Radik but the first owner will be Katrina and Vicky. It means all the publishing rights and right to commercially exploit the works vests with first owner.

In camera house, Bombay v State of Maharastra((1969) , the court laid down the commercial use of the photograph such as selling, distributing etc. lies with the owner itself ( whether he is the photographer himself or working in course of employment). Hence, understanding as to who has ownership rights is very important in order to exercise, the commercial rights.

CONCLUSION

Hence, the copyright law has acted as a full proof mechanism to protect the rights of the photographers both in physical and digital world. It has laid emphasis on criteria of creative inputs rather than just mere mechanically clicking pictures. However, with rise of AI, wherein the photo is AI generated based on the culmination on pre-trained data, it is yet to be answered as to who owns the authorship rights in such photographs? The person who created the AI or the AI tool itself. Thus, the copyright law although have sufficiently protected the rights of photographer as author and first owner yet issues of AI needs to be addressed.