This blog is authored by Aditi Mishra, 3rd-year student of Hidayatullah National Law University.
INTRODUCTION
The fundamental character of law is to be flexible. The growth of the paparazzi industry combined with the increase in popularity of platforms like Instagram and Facebook, has resulted in celebrities being taken photograph of, at random locations only to be circulated over the internet across the globe. As a result, there has been an ongoing debate over the conflict between “right to publicity” of a celebrity (the right to regulate how his or her public image is propagated and envisioned in the public) and the copyrightability of paparazzi pictures. Right to publicity comes under the domain of personality rights and primarily deals with economic exploitation of photograph. Although there have been no such instances in India to date, there have been numerous cases in other countries that have drawn attention to these conflicting rights.
For instance, Dua Lipa, a globally acclaimed singer, received a legal notice from the United States court after posing for paparazzi picture at the airport, which she subsequently re-posted on her Instagram feed. Integral Images, the paparazzi company that asserted copyright to the image, filed a lawsuit against her for copyright infringement. Gigi Hadid, the Kardashian Sisters, Justin Bieber, and Jennifer Lopez have all been involved in similar situations in the past, with the majority of them ending in an out-of-court settlement.
A question to ponder upon is, who would reap the fruits of a picture attracting millions of likes? The photographer who took the snap or the subject-matter therein?
As stated in John Locke’s theory of Fruits of Labor, ‘whenever someone has put in significant effort into something, society must grant him a legal right to enjoy the fruits of his labour exclusively’. With regard to paparazzi photographs, the question arises as to who owns the photograph: the person who posed for the photograph and thus gave it monetary value, or the photographer who clicked the picture and captured the art in order to sell it?
The author herein endeavours to analyse this dichotomy and propose legal findings based on the principles prevalent in India that will address both the concerns of celebrity over publicity rights and the rights of paparazzi photographers over their photograph.
WHOM SHALL THE OWNERSHIP VEST IN – THE PHOTOGRAPHER OR THE SUBJECT-MATTER?
Artistic works, including photographs, are protected by Copyright Law in India under Section 2(c)(i) of the Copyright Act, 1957 (‘Act’). As per Section 17 of the Act, the author of a work is defined as the first person to obtain ownership of the copyright to that work. Section 2(d)(iv) defines a ‘author’ in relation to a photograph as the person who takes the photograph. Consequently, unless one of the exceptions set forth in Section 17 applies, the photographer is clearly deemed to be the owner of a copyright in a photograph under the provisions of the law.
As a result, in case of paparazzi photographs, the issue of copyright ownership of the subject does not arise under any of these exceptions because such photographs are neither commissioned works nor created under the terms of a contract of service. The person (paparazzi in this case) who clicks the photograph is vested with the right to commercially exploit it for economical purposes. Any person who exercises rights that are exclusive to photographers without obtaining permission and license can be held liable for infringement under Section 51 of the Act.
This clearly implies that although the celebrities are subject of photograph, they cannot post pictures clicked by paparazzi’s without obtaining permission from them.
The Act, on the other hand, has not kept up with the evolution in technology, such as the increase in the use of social media and the consequent rise in legal diaspora surrounding publicity rights of celebrities. Hence, it is essential for celebrities to exercise control over the distribution and propagation of their paparazzi pictures and in manner they’re perceived by public at large.
PUBLICITY RIGHTS- A FAIR USE UNDER SECTION 52?
Another important question which arises is, whether on applying the concept of fair use under the Act, can a celebrity be allowed to post their photographs on social media without obtaining license from the paparazzi?
Section 52 of the Act, lays down certain acts performed in relation to copyrighted works that do not constitute infringement of the copyright. According to Section 52(1)(a), any act done in respect of copyrighted works for the purposes of ‘private or personal use’ or for the ‘purposes of criticism or review of a work’ or for the ‘purpose of reporting of current affairs or events’ shall not amount to its infringement and would constitute “fair use” under the Act. Hence, the only possible justification a celebrity can take for posting a picture of them clicked by paparazzi is that of “private use.”
Unfortunately, the line between private and public life on social media is not always clearly defined. Social media posts, particularly made on public accounts, such as those maintained by celebrities, do not appear to have the luxury of being categorised as private or personal use and are unlikely to be protected from liability for copyright infringement under Indian Law as the posts existing on public accounts have millions of followings. Hence, it is very improbable that the exception of ‘private or personal use’ may apply in these circumstances.
LACUNAS IN THE CURRENT LEGAL FRAMEWORK
Under the prevailing Indian legal framework, right to publicity is a relatively new concept, having emerged without any statutory backing and instead being recognised solely through judicial interpretations. In most cases, it is understood to be the celebrity’s legal right to exercise control over the commercial appropriation of their image.
While examining the scope of publicity rights in the case of ICC Development (International) v. Arvee Enterprises, the Hon’ble Delhi High Court observed that these rights are deeply ingrained in every person and in aspects of their personality such as their name, signature, or other distinguishable character attributes. The Court also recognised breach of publicity rights as a separate tort, which is apparent from the observation of the court which states that “the use of a celebrity’s persona without their express permission entitles them to sue the party who used it for damages.”
The Hon’ble Supreme Court in Titan Industries v. Ramkumar Jewellers interpreted “Right to Publicity of a Celebrity” as an exclusive “right to determine” the commercial exploitation of their personal identity, the place and manner in which it may be exploited.
On similar lines, in Shivaji Rao Gaikwad v. Varsha Productions, the Hon’ble Madras High Court while prohibiting the defendants from making use of plaintiff’s name who is a well-known celebrity, held that using of the name of the plaintiff without his authorization will constitute violation of his right to publicity.
The legal pronouncements discussed above were solely based on the idea that infringement of publicity rights demarcated an implicit endorsement by the celebrity which could further delude the general public. In the absence of an authoritative precedent, a void still remains in the answer to the question of “whether a celebrity can lawfully share their own paparazzi photographs on their social media accounts?”
Present position of law mandates that, the publicity rights grants celebrities certain liberties to control their public image and its commercial utilisation however, they are not entitled to publish pictures/images, the right to which solely vests with the owner i.e., papparzzis.
A WAY FORWARD
As discussed above, the current legal framework creates an impasse between the celebrity’s and photographer’s right. The legal development around paparazzi rights vis-à-vis personality rights is in a nascent stage. Accordingly, a legislative amendment is required in order to strike a balance between the two conflicting rights.
The Hon’ble Delhi High Court in DM Entertainment v Baby Gift House and Ors., held that “a claim for the right to publicity should not be available in cases where it might impinge on someone else’s freedom of expression and speech, such as in the case of cartoons and caricatures.”
Incorporating the same in current legal standards would devise a framework that is beneficial to both the paparazzi and celebrities while also ensuring that they are each entitled to their respective legal rights.
CONCLUSION
By granting the author of a work the exclusive right to commercially exploit the work, the concept of copyright was established in order to encourage innovation and development activities. To be certain, the celebrity subjects of paparazzi photographs add to the value of the photographs. That should not, however, preclude the subject from publishing the photograph on social media and thereby gaining popularity and exposure at the expense of the photograph losing its novelty and its market value (including licencing opportunities, for example). This is especially true in cases where a celebrity uses an image of this nature for a clearly commercial purpose. In such cases, its use must be considered as copyright infringement, and monetary damages must be awarded. In an era when celebrities earn millions of dollars from their social media posts, it is critical that the courts treat these violations with serious consideration.
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