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Copyright regarding Paparazzi photos: Where does the liability lie?

February 21, 2022
copyright

By Lucy Rana and Pranit Biswas

Introduction

Paparazzi and celebrities, in this day and age of instant communication, are simply non severable. All it takes is one second and a decent smartphone to snap a photograph. Stereotypically, it is the celebrities who are the aggrieved party and the paparazzi the alleged jackals, who aim to profit from violating the privacy of celebrities. However, in the past few years, the tables have been turned and it is celebrities and influencers who have been sued for posting photos of them, which have been taken by paparazzi! It is not only TV or movie stars facing this problem, but even political leaders such as the French President Emmanuel Macron, who sued a paparazzi photographer for invasion of right to privacy. The tug of war between paparazzi photographers, who sell these photos to media outlets for a commercial profit and celebrities, who rarely consent to such photos being taken, has taken a legal turn in nations like the US and France, and India may soon follow suit. In this piece, we analyze the various legal nuances surrounding this issue, and look at the issue from both sides’ perspective.

Rule in India

Under section 2(d)(iv) of the Copyright Act, 1957, it is clear that any person taking a photograph, is the author of that work, and the copyright is explicitly provided for under section 17 of the Act. A photograph is considered to be an artistic work (section 2(c)(i)).

However, personality rights have not yet been statutorily recognized in India, but the same has indeed been mentioned in various Supreme Court judgements. In the ICC Development case, the Hon’ble Apex Court held that a person’s voice, signature and traits would constitute their personal rights.[1] Additionally, in Titan Industries Ltd Vs. Ramkumar Jewellers, regarding ‘personality rights’, the court stated that it is an “enforceable right in the identity or persona of a human being.”[2]

Rights of photographers vis-à-vis the rights of celebrities and legal liability

There are multiple questions that arise regarding whose rights are being infringed and which side has the legal liability in a cases wherein a celebrity re-shares a copyrighted photograph clicked by paparazzi. It is patently clear that the photograph taken is the legal property of the photographer, but does co-authorship arise since the celebrity forms the subject matter of such a composition? This was an argument raised by Gigi Hadid when facing a suit of copyright infringement from an agency named Xclusive-Lee. The famed model argued that since she posed for the photograph and was in charge of her appearance, she should be considered a co-author of the work. For a photograph, the subject matter does play a role in the rights of the work. However, in the present, while Gigi Hadid ultimately prevailed in the case, the same was not because the Learned Judge accepted the argument of co-authorship, but because the paparazzi agency did not possess a copyright registration over the photo in question prior to filing the suit, although they had filed an application and the same was pending at that time. However, what was deemed as more controversial by many commentators at that time was that the Court’s decision was predicated upon a Supreme Court ruling (in Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC) which was passed subsequent to filing of the suit! The said SCOTUS case basically ruled that copyright registration is a prerequisite for making a case of infringement (which, as many readers would not, is not a prerequisite in India). Thus, the Court did not adjudge upon the rather crucial question of whether such celebrities can be considered to be co-authors and/or if such usage falls under the ambit of fair-use.

The case of Jonathan Mannion Vs Coors Brewing Co[3], cemented this role, by stating, inter alia, that the rendition, timing and coordination of the subject matter plays a role in its copyrightability. In contrast, the Hadid case was eventually disposed of on procedural grounds rather than on merit of arguments, and the Learned Judge did not engage with this contention. There have not been any cases of co-authorship of a photograph by a model and a photographer, but with increasing popularity of models and celebrities, the rules of collaborative photoshoots between both parties needs to be hashed out.

In India, an author is clearly defined as the one who takes the photograph, and as such there is no ambiguity in the legislation.

No celebrity would be able to claim fair use or fair dealing under Section 52 of the Copyright Act, with respect to copyrighted photographs, as even though the Act provides for “private and personal use”, sharing of the photograph on a public account is beyond the scope of public communication and has a clear commercial aspect. Communication is only considered private, when it is made to a restricted audience. Posts made on social media do not have the privilege of being called private communication when they are made on a public account.[4]  Since the owner of a copyright possess the right of communication to the public, and posting of such photograph prima facie amounts to ‘public communication’, an assertion of fair use by the celebrity in such context, would not be construed as a valid defense, especially because as per law, the author is distinct from owner of copyright, and it is the exclusive right of the owner.

Global perspective

In this context, India’s perspective of fair use is more restricted than that of USA. In the United States, there are 4 factors that are considered to validate fair use: the purpose, nature, amount or substantiality and commercial effect of any usage of protected material. In the aforementioned case of Gigi Hadid, a four pronged argument was made on the basis of these factors and fair use was asserted. She argued that the purpose of re-sharing the photograph was purely personal and not commercial, and thus it should not constitute a violation of the copyright. Secondly, the candid photograph clicked on the streets made it a factual work and not a creative one, since no set-up or preparation was involved. Additionally, since Hadid used only a part of the photograph and not the entire image (as the image was purportedly cropped to increase the focus on her), a significant amount of the work was not used. Lastly, as Hadid used the work after it had already been published, there was thus no real impact on the economic output of the photograph borne out of her act. It is still unclear how different Courts would have responded to these arguments, especially with respect to personality rights of such celebrities, when pitted against the copyright rights of the photographers.

 

France’s specifically recognizes the right to privacy in its Civil Code. This recognition provides a much needed shield for celebrities from pictures being taken of them even when they are in the public eye. The right to respect is enshrined in Article 8 of the European Convention on Human Rights (ECHR), which protects the right of every individual to keep their life private. A Court, in the case of Von Hannover v. Germany, decided that it was this article that was violated, when photographs of Princess Caroline von Hannover taking part in non-official activities were posted.[5] The Court categorically stated the principle that any person has the right to hide their life from the public view, and the general public of a nation does not have the vested interest in anyone’s life. The court noted that “… people known to the public, had to have a “legitimate expectation” that his or her private life would be protected.” Thus, a subject of such photographs can object to them being taken at least in the EU.

Right to privacy v. Copyright?

Thus, the dilemma that emerges from the above discussion is what would prevail in cases of copyrighted paparazzi photos being shared by the subject matters of the photos. While looking into this question, one must analyze the various factors that are worth consideration in dissecting this dilemma:

  • The setting of the photograph – whether the same was clicked in a public place or a private place, wherein unauthorized ingress or unauthorized photography is prohibited.
  • Permission – whether the celebrity posed for the photo, or was the photo adversarial (for instance, the celebrity was clearly shying away from photographers and unwilling to be clicked).

In this regard, it is also to be kept in mind that certain photos of celebrities have immense monetary value. For example, one would imagine that a paparazzi photo taken in a secret wedding of 2 celebrities may be sold for thousands of dollars, if not millions! For instance, the Indian celebrity couple Katrina Kaif and Vicky Kaushal were purportedly offered hundreds of thousands of dollars (or crores of rupees) to sell the rights over content such as photos and videos pertaining to their recent much talked about wedding, wherein unauthorized photography was restricted[6].

Further, in such cases, the celebrities in question reserve the right to privacy and deliberately restrict unauthorized photography, specifically for the above reason, that the photos can be sold by them for profit. As such, the above two questions as outlined above, would play an important part in determining who would prevail in a battle between the celebrities’ right to privacy versus the copyright in the photograph taken by paparazzi.

However, if a legislation were to fill the void in the law regarding the subject matter, and try to balance the rights of photographers vis-à-vis rights of the subjects, then the above factors would definitely be of use.

Conclusion

There is a need for the Courts or Legislation to balance the interests of both, celebrities and photographers. There is no doubt, that sharing paparazzi photographs is a violation of the copyright held by the photographers in India – insofar as the fact that the photographer is the author as well as first owner of the photograph is set in stone in Section 2(c)(i) and 2(d) of the Copyright Act, 1957. Thus, in order to factor in the current paradigm regarding celebrities and paparazzi photographers, the question of co-authorship, or even co-ownership, in this context, needs to be specifically addressed.

A legislative change, either by way of amendment to the Act, or by judicial interpretation, is the only way to ensure that rights and liabilities are balanced in similar scenarios. There has been limited judicial research into this topic, although the ownership of the copyright is not in question. An approach to personality rights in a detailed manner, which would further outline the relationship in question, has become a requirement. Especially in this day and age, a balanced and holistic view is the need of the hour, which provides for a mutually profitable ecosystem.

[1]  ICC Development (International) Ltd., Vs. Arvee Enterprises and another, 2003 (26) PTC 245.

[2] Titan Industries Ltd Vs. Ramkumar Jewellers, 2012 (50) PTC 486 (Del).

[3] Jonathan Mannion Vs Coors Brewing, Co 377 F.Supp.2d 444.

[4] Garware Plastics And Polyester v Telelink And Ors., AIR 1989 Bom 331 .

[5] Von Hannover v. Germany, (application no. 59320/00).

[6] https://www.india.com/entertainment/bollywood-news-katrina-kaif-vicky-kaushal-to-sell-wedding-photos-rights-to-international-magazine-for-a-whopping-price-5121661/

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