By Chandni Ghatak
The primary objective behind the formation of the copyright regime worldwide, was two-fold in nature. First, it was to essentially protect and grant exclusive rights to the one who made such work possible. Second and perhaps a subtler aim in this regard was to identify and reward the exercise of creative skill used by the creator/author in the making of such protected work. In this essay, the author shall draw attention to the second element of the two-fold objective as described, considering photographs. Photography, as a skill has witnessed considerable amount of progress, be it in the way it is treated as an art or in the immense value it holds in creative fields of fashion and film making, amidst many more.
It arguably has travelled beyond the simple exercise of capturing moments to becoming a major contributor in the artistic appeasement the aforementioned industries thrive upon. Copyright protection for this bunch of work then becomes even more necessary, however, the element of creativity which copyright protection aims to protect in most jurisdictions witnesses a bare minimum standard in the case of photographs. The forthcoming parts of this essay shall lay down the position of law in this regard in India & other jurisdictions, while moving onto more contemporary issues arising in this discussion.
Where do I see the Creativity – Exploring Jurisdictions:
As pointed out earlier, the threshold of creativity appears to be low with respect to photographs. When one analyses the Indian position on this point, we find photographs to be included within the ambit of ‘artistic works’[i]. Upon a bare reading of the Copyright Act, 1957 (India) [Act], one can further infer that for such work to be protected in India, any kind of artistic quality as such is not an essential parameter upon which such protection rests.[ii] Therefore, it appears that even if a person boasting of no particular skill takes a photograph, it may still be protectable under the Indian regime. Does this then in a way, take away the vital element upon which copyright protection is based i.e. rewarding a certain degree of creativity? The author would answer in the affirmative as strangely enough, in the Indian regime if a same object has been photographed by two different individuals, in two different angles/lighting etc., both these individuals have a strong claim for seeking copyright protection due to the labour and skill requirements, upheld largely by Indian Courts.
Comparatively, in USA initially especially with respect to fine arts, if such work exhibited a ‘distinguishable variation’ from other works, thereby showcasing a personal imprint of the author’s persona, such work would be said to possess a certain level of creative merit.[iii] This can be said to have been the opinion echoed in an EU Council directive[iv] which stated that for a photograph to enjoy protection, it must be an intellectual creation indicating the author’s persona. However in the US, this approach changed in light of the judgments rendered in the cases of Feist Publications etc.[v] While this judgment mainly dealt with the case of compilations, it emphasised on the presence of a minimum degree of creativity, in order to claim copyright protection.[vi] However, with the recent question of the famous David Slater’s Monkey Selfie case reaching the Ninth Circuit [vii], pertinent questions of evaluating this question of creativity in light of photographs have re-emerged.
In the United Kingdom, from where majority of India’s copyright jurisprudence is inspired, the sweat of the brow doctrine has been extensively relied on when evaluating whether works deserve copyright protection. In the case of Ladbrooke (Football) Ltd v. William Hill (Football) Ltd[viii]., the Court reiterated the basic principle that so long the work concerned originated from the said author, showcasing a degree of labour, judgment and skill, it would be entitled to copyright protection. Therefore, gauging the significance of the work becomes an immaterial consideration while answering this question of providing copyright protection. This is in fact a position that has evidently found agreement in the Indian context too.
A relevant observation in this regard is that while professional photography in general requires an understanding of lighting, angles etc; to take a perfect shot of a certain location or object, the Indian copyright regime specifically does not concern itself with these factors. For it, so long as the shot taken is original, copyright automatically rests with the author unless an agreement to the contrary prevails.[ix] This as per the author appears as unfair since the acknowledgement of creativity factor as described in the beginning of this essay is lost, when the threshold is kept this basic. In the forthcoming section, the author shall point out certain problems emerging due to the low threshold of creativity maintained with respect to photographs, under the copyright regime.
Click, Click – Where lies the Problem?
The major anomaly that arises with respect to most of the copyright regimes is the fact that photographs are recognised in the wide ambit of artistic work. This is not only an issue of nomenclature, since for instance, the Act includes even painting & sculptures in the same category as a photograph.[x] A sculpture or a painting naturally entails far more labour along with the exercise of creative skill in its production, whereas it can be argued that a photograph is essentially a reproduction of some pre-existing original work.[xi] The flipside to this argument may be that even in such reproduction, there has been an exercise of a certain degree of skill and labour, however regardless of the argument, the ultimate result arising is that of a general overlap of copyrights, that of the photographer and that of the author creating the work being photographed. Another dimension to this problem is that works which evidently lack any modicum of creativity will continue to be granted protection. This simply would open the door for further confusion.
A more recent event, pointed out earlier, is that of the question emerging out of the Monkey Selfie Case. This bizarre case has opened doors for discussion on this issue of determining not only whether the photograph in question has showcased any extent of creativity but also who is the actual creator of this photograph. The issue of revisiting the interpretation of who constitutes an ‘author’ as per US law has naturally come about, considering that if the ruling is made that the monkey was in fact entitled to seek copyright protection, the future of artificial intelligence enabled systems and copyright would become more complicated. Further, on the point of creativity, if the usual sweat of the brow doctrine was to be relied on also by the US in this instance, the outcome would appear as a complete disregard to the element of creativity in such works. However, the problem does not get solved even if the US Court were to rely on the Fiest[xii] ruling, for evaluating the creative skill of an animal is a challenge in itself.
While the author notes that the above instance is one formed out of peculiar circumstances, it only becomes crystal clear that there requires to be a set standard, preferably a higher one in measuring the creative extent of photographs. Otherwise, as is the present case, even a mere scan of a painting etc; would be entitled to an individual copyright.[xiii] This not only removes an incentive to create for the creator of such painting or other work but also defeats the basic premise of copyright law which is to protect original, creative work.
Creativity, as a parameter for granting protection is a necessary evil in any copyright regime. The author is of such opinion, due to the fact as illustrated above that in case a creative calculation is not made while determining whether a work deserves copyright protection, the premise on which such protection has been founded upon shall stumble. This is not only due to the utilitarian argument of encouraging the progress of creative industries such as that of photography itself but also avoiding frivolous claims being made in this regard. If the threshold is kept at such a low degree as it is presently in several jurisdictions including India, it makes way for a flood gate of trivial litigation to arise. Granted that considering there exists an unaware public who may accidentally create something require protection, the standard for evaluating whether or not a work may be truly deserving should not be lowered. While it is undeniable that determining a standard of creativity is one which equips a panel or bench immense discretion, what it majorly would do is assist in the process of making the law more accessible and efficacious to those who deserve it. Creative work, as we know is one which emerges not only as a result of a successful combination of skill and labour but also that of a talent, rare amongst the general population anywhere. As the law of intellectual property is one dealing with individual rights, this sense of individuality translating into creative expression cannot then stand ignored.
[i] § 2(c)(i), The Copyright Act, 1957 (India).
[iii] Bleistein v. Donaldson Lithographing Co.,188 U.S. 239 (USA).
[iv] EU Council Directive 93/98/EEC (1993).
[v] 499 U.S. 340, 342 (1991) (USA).
[vi] Analysis of Doctrines: ‘Sweat of the Brow’ & ‘Modicum of Creativity’ vis-à-vis Originality in Copyright Law, India law, available at http://www.indialaw.in/blog/blog/law/analysis-of-doctrines-sweat-of-brow-modicum-of-creativity-originality-in-copyright/ ( Aug 17, 2017 at 20:33 PM).
[vii] Kieren McCarthy, Hey, remember that Monkey Selfie copyright drama a few years ago? Get this- It’s just hit the US Appeals Courts, available at https://www.theregister.co.uk/2017/07/12/monkey_selfie_and_appeals_court/ ( Aug 17, 2017 at 21:08 PM).
[viii]  1 W.L.R. 273 (UK).
[ix] Copyright Protection for Photographers in India, Selvam & Selvam, available at http://www.selvamandselvam.in/blog/copyright-protection-photographers-india/ ( Aug 17, 2017 at 21:19 PM).
[x] § 2(c), supra note 1.
[xi] Serge Planteureux, Copy, Copy Copyright, L’oeil De La Photographie, available at http://www.loeildelaphotographie.com/en/2017/05/16/article/159951589/copy-copy-copyright/ ( Aug 17, 2017 at 20:42 PM).
[xii] Supra note 4.
[xiii] Serge, supra note 9.
Image source: Image by Gerd Altmann from Pixabay. Available at: https://pixabay.com/illustrations/email-keyboard-computer-copyright-826333/