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N.K.Assumi (Advocate)     10 February 2009

Can there be copyright over photograph of an existing photograph?

A photograph of a girl was taken by an advertisement agency and it was published in the news paper with her consent. The agency gave the photograph of the girl to another company and the company advertised the photograph for advertising their business. But the girl filed a suit of defamation against the second company for using her photograph. Is her suit for defamation legal and valid? Can there be copyright over such photograph of an existing photograph?


 5 Replies

Manish Singh (Advocate)     11 February 2009

Dear Sir,

i am reproducing the provisions of the Copyright Act for your perusal :

2.Interpretation. In this Act, unless the context otherwise requires,- (a) adaptation " means,- (i)in relation to a dramatic work, the conversion of the work into a non-dramatic work; (ii)in relation to a literary work or an artistic work, the conversion of the work into a dramatic work by way of performance in public or otherwise; (iii)in relation to a literary or dramatic work, any abridgement of the work or any version of the work in which the story or action is conveyed wholly or mainly by means of pictures in a form suitable for reproduction in a book, or in a newspaper, magazine or similar periodical ; and (iv)in relation to a musical work, any arrangement or transcription of the work ; (b) " architectural work of art " means any building or structure having an artistic character or design, or any model such building or structure (C)" artistic work " means- (i)a painting, a sculpture, a drawing (including a diagram, map, chart or plan,), an engraving or a photo- graph, whether or not any such work possesses artistic quality

d) author " means,- (i) in relation to a literary or dramatic work, the author of the work ; (ii) in relation to a musical work, the composer; (iii)in relation to an artistic work other than a photograph,the artist ; (iv) in relation to a photograph, the person taking the photograph.

but here they talk about a person taking pictures of nature or persons with lawful means as such n the above case too, the lawfullness shall play an important pat while adjudging legality of licensing the said copyright to third person.

if we take another view then it comes out tht if the consent was given only to the said photographer, then he was bound not to makethe photos published by third pardy. its an encroachment to the right to privacy as well as breach of contract.


N.K.Assumi (Advocate)     11 February 2009

In artistic work or photograph who is the owner of the copyright?

Vinodkumar Kotabagi (Advocate and Trademark Attorney)     11 February 2009

 In artistic work, the person who has taken the photograph is the owner of the copyright. If he is employed by some company then that company becomes the owner depending upon their terms of agreement or contract of employment. In the instant case, if that photographer has clicked the photos at the instance  of that girl, then she becomes the owner of the copyright. but the author of that photo shall still be the photographer who has taken that photo. That is how, there is difference between the owner of the copyright and the author of the copyright.

A V Vishal (Advocate)     23 April 2009

25. Term of copyright in photographs – In the case of a photograph, copyright shall subsist until [(Note: Subs. by Act No.13 of 1992, S.2, w.e.f. 28-12-1991. In this regard S.3 of Act No.13 of 1992 reads: "3. Copyright not to subsist if term has expired - For the removal of doubts, it is hereby declared that copyright shall not subsist by virtue of this Act in any work in which copyright did not subsist immediately before the commencement of this Act.") sixty years] from the beginning of the calendar year next following the year in which the photograph is published.

Gagan Gupta (Advocate)     30 April 2009

Photographer is the owner of photo (Even if taken without permission) unless there is agreement to the contrary,
so he can sale it further as well.
But if the photograph is of celebrity than he can ask for injunction for protecting his privacy but there r less chance to win.
So far defamation is concern it will be only if ingrediants of it r complete. in present case these r not there.

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