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CAPTURING FAME: NAVIGATING COPYRIGHT IN CELEBRITY PHOTOGRAPHS

Updated: Aug 21, 2023

BY: ISHETA T BATRA


There was a time when celebrities had to wait a whole day, or sometimes even weeks to see their own photo clicked by a photographer for a magazine or a newspaper. They had no other mediums, except for the magazine or the newspaper where the photo would be published. However, times have changed and so have practices. Magazines and newspapers are no longer the only mediums through which photographs of celebrities can be viewed. With the advent of technology and social media, photographers are not exclusively dependent on print magazines and newspapers to publish photos of celebrities, and celebrities too, aren’t exclusively dependent on such mediums to publicize themselves.


Technology and social media, having changed how media works, has also brought with it several new contentions and issues with regard to copyright of content posted on social media. One such issue is the question of whether celebrities infringe the copyright of the photographers by posting photos clicked by the photographers (in which the celebrity is the subject) on their social media profiles?


Recently, there have been several instances, where photographers have taken celebrities to court claiming copyright infringement against celebrities posting photos clicked by such photographers on their social media profiles. Since all such cases have been settled out of court, there is no insight into what the judicial take on this issue is.

This issue has a lot of aspects to be considered and involves intricate details to be evaluated from different situational and legal angles. The issue also involves questions of right to privacy and publicity rights, which is discussed in detail below.


Copyright in Photographs

Under the Copyright Act, 1957 (“Copyright Act”), copyright exists in artistic works and artistic works include photographs (Section 2(c)(i)). Such copyright is held by the author and with respect to a photograph, the author is the person taking the photograph (Section 2(d)(iv)). So, if you take a photograph, you have a copyright in the photograph.


Having copyright in his photographs, the photographer has the sole and exclusive right to reproduce the work or communicate it to the public, as per Section 14(c) of the Copyright Act. Copyright, therefore, protects the legal right of photographers to publish, reproduce, or sell their photographs. Others who intend to reproduce such photographs need to get permission from the owners.


Therefore, the law on who holds the copyright in photographs is abundantly clear. It is the photographer.


Copyright Infringement with respect to Photographs

While the law on copyright in photographs is clear, there is a lot of ambiguity around what exactly constitutes copyright infringement with respect to photographs, especially in cases of photographs of celebrities. As mentioned above, this issue involves several aspects entangled within. There is no authoritative position with regard to the same. So, a deeper analysis of such various aspects is necessary (and is provided below) to arrive at the legal position around copyright infringement with respect to celebrities’ photographs.


The first aspect that we will deal with is whether a celebrity infringes the copyright of photographers when she posts (on her social media profile) photos that were clicked by the photographer (of which the celebrity is the subject)?

To address this aspect, various situations will have to be analyzed in light of the Copyright Act to understand the legal position. Before we look at the various situations, it is pertinent that Section 52 of the Copyright Act is mentioned. Section 52 provides for certain exceptions, where use of copyrighted material by a person other than the copyright holder does not constitute a copyright infringement. The section inter alia provides as follows:


“The following acts shall not constitute an infringement of copyright, namely,—

(a) a fair dealing with any work, not being a computer programme, for the purposes of—

(i) private or personal use, including research;

(ii) criticism or review, whether of that work or of any other work;

(iii) the reporting of current events and current affairs, including the reporting of a lecture delivered in public…”


Now, the Copyright Act doesn’t define what exactly constitutes “private or personal use”, but Calcutta HC’s ruling in the case of Saregama India Ltd. & Ors vs Alkesh Gupta & Ors. (CS No.347 of 2013 gives an insight into the matter. The Court while determining if use of artistic work was for private or personal use or not, laid down as follows:

Section 52 (of the Copyright Act) deals with certain Acts which do not amount to infringement of copyright. Private or personal use does not constitute an infringement of copyright, but what happens if the use is not for private or personal use, but is a commercial exploitation in the sense that a website permits the sound recordings to be streamed for which the website receives a fee or revenue may be from its sponsors or from third parties. This amounts to commercial exploitation and would not be termed to be for private or personal use.


The Court clearly singles out commercial exploitation from private or personal use. Therefore, where a photograph is not used for commercial exploitation, it is said to be used for private or personal use.


In such light, let us look at the various situations in which a celebrity posts on her social media profile, a photo (of which she is the subject) taken by a photographer:

  • When a celebrity merely posts on her social media profile, a photo of her, clicked by a photographer

In this case, the celebrity merely posts a photo of herself and receives no commercial gain from doing so. Therefore, such a post cannot be termed as a copyright infringement as such posting of a photo constitutes private or personal use.

  • When a celebrity endorses a third-party brand by posting on her social media profile, a photo of her, clicked by a photographer

In this case, since the celebrity endorses a third-party brand through the photograph, she must have received some commercial gain out such endorsement. However, that cannot result in a copyright infringement, because Copyright in a work is considered as infringed only if a substantial part is made use of unauthorizedly. What is ‘substantial’ varies from case to case. (Reference: Handbook on Copyright Laws, Department For Promotion of Industry and Internal Trade Ministry of Commerce and Industry)


In this case, the celebrity receives commercial gain because of various reasons such as her personality, her goodwill, the third-party’s intellectual property, the third-party’s goodwill, the third-party brand’s goodwill, the brand’s product/service, etc. Even though the full photograph is posted, the photograph contains several other aspects such as the celebrity herself, the endorsed brand, the products, etc., and it is substantially on the basis of all the other aspects, that the celebrity receives commercial gain. The photograph does not form a substantial part of such an endorsement and therefore, the commercial gain cannot be substantially attributable to the photo.

  • When a celebrity endorses her own brand of product/service by posting on her social media profile, a photo of her, clicked by a photographer

In this case, there is no involvement of a third-party brand. A celebrity uses a photo captured by a photographer to endorse her own brand. The celebrity will enjoy direct commercial gains in the form of profits by using such a photo to endorse her brand, and the photo forms a substantial part of such an endorsement, in the absence of any third-party brands, products or services. Therefore, such posting of a photo will result in a copyright infringement.


The next aspect that we will look at is whether photographers have copyright in all photos of celebrities taken in whatsoever manner?

This is a complex and intricate issue and even involves the issue of right to privacy that need to be addressed. Even though there is a general understanding amongst the masses that celebrities have a lesser degree of right to privacy as compared to an ordinary individual, the same has no legal backing. Unlike the USA, India does not have a clear classification of who exactly is a celebrity and who is an ordinary individual. Therefore, legally speaking, the same standards for expectation of privacy is to be used for all individuals, irrespective of whether they are a celebrity or not.


The issue of right to privacy was extensively dealt with and authoritatively laid down by the Supreme Court in the case of Justice K S Puttaswamy v. Union of India (2017) 10 SCC 1 (“Puttaswamy Case”). The Apex Court laid down that the right to privacy is a fundamental right under Article 21 of the Constitution and such right “protects the inner sphere of the individual from interference from both State, and non-State actors and allows the individuals to make autonomous life choices.” It also evaluated the right to privacy in the era of technology in a country like ours, and laid down that “In an era where there are wide, varied, social and cultural norms and more so in a country like ours which prides itself on its diversity, privacy is one of the most important rights to be protected both against State and non-State actors and be recognized as a fundamental right.”


In the Puttaswamy Case, the Supreme Court also dealt with publicity rights as a part of right to privacy and laid down that “Every individual should have a right to be able to exercise control over his/her own life and image as portrayed to the world and to control commercial use of his/her identity. This also means that an individual may be permitted to prevent others from using his image, name and other aspects of his/her personal life and identity for commercial purposes without his/her consent.”


This has, in essence, limited the unbridled right that photographers had to click pictures of celebrities in whatsoever situation they might be in. However, do celebrities have such an extensive right to privacy that they can deny as a matter of right, the circulation of any photograph of them that they do not like? This has to be answered from various situational angles:


  • When a celebrity poses for a photograph in a public space upon the request of a photographer, she has herself impliedly consented to her photograph being clicked and therefore, no privacy infringement, and the photographer has a copyright in the photograph.

  • When a photographer photographs a celebrity in a public space without her consent or knowledge, even though she has no knowledge of her photo being clicked, in a public space where a person has put herself in an easily accessible public view, the degree of privacy available to such person is minimal. Therefore, the photographer who clicks such a photograph has a copyright in the same.

  • When a photographer photographs a celebrity without her consent or knowledge when she is in a space that is not normally visible to the public, the situation becomes complex. There is absolutely no consent involved in this situation as the celebrity has not placed herself in a space that can ordinarily be viewed by the public. In such cases, clicking a photograph of a celebrity is violative of the celebrity’s privacy, and therefore, no copyright will exist in such a photograph.

  • When a photographer photographs a celebrity without her consent or knowledge when she is in her house, the situation again becomes complex. In this scenario too, there is absolutely no consent involved. In this regard, it is worthwhile to visit an extract of the judgment in the Puttaswamy Case, which states that “Technology has made it possible to enter a citizen’s house without knocking at his/her door and this is equally possible both by the State and non-State actors. It is an individual’s choice as to who enters his house, how he lives and in what relationship. The privacy of the home must protect the family, marriage, procreation and sexual orientation which are all important aspects of dignity…

If the individual permits someone to enter the house it does not mean that others can enter the house… This applies both to the physical form and to technology.”


In such light, any photograph clicked of a celebrity when she is inside her home is invasive of her privacy and therefore, the photographer will have no copyright in such a photograph.

All said and done, there arises a very important question as whether copyright is content-agnostic? Simply put, does copyright depend on the morality or legality of the content of an artistic work, or is it merely only concerned with its originality?


In this regard, reference may be placed on a landmark UK judgment in the case of Holman vs Johnson (1775) 1 Cowp. 341 at 343. The Court held that “No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act.”


The same principle was relied on by the Delhi HC in the case of Super Cassettes Industries Ltd. vs Hamar Television Network Pvt., 2011 PTC (45) to hold that reliance on copyright to suppress documents which could exonerate motorists convicted of drink driving or which might lead to their acquittal to be immoral.


Further, in another UK judgment in the case of Glyn v Weston Feature Film Co., [1916] 1 Ch. 261, the Court denied relief for copyright infringement was refused where the nature of the work tended to gross immorality.


In such light, it becomes clear that copyright cannot exist in artistic work that is or is obtained through immoral or illegal means. Since violating a person’s privacy is both immoral and illegal, it is hard to contend that photographs of celebrities taken by photographers in violation of the celebrities’ privacy is copyrightable.


Takeaways

Now that the legalities around copyrights in celebrity photographs are clear, here are a few takeaways for celebrities and photographers or media houses that employ photographers:


Final Takeaways for Celebrities

  • If you want to post photos of yourself clicked by other photographers, do provide them with the credits to the photograph.

  • If you want to use photos of yourself clicked by other photographers to promote a third-party product/service, be sure to provide credits to the following persons/entities:

    • The photographer for the photo; and

    • The company/person who produces or provides the product/service.

  • If you want to promote your own product/service using a photo of yourself clicked by a photographer, make sure you receive proper authorizations from the photographer to use the photo.

Final Takeaways for Photographers

  • It is always advisable to seek permission of the celebrity before photographing her.

  • Never click photographs of celebrities when they are present at a place that is not ordinarily visible to the public.

  • Do not resort to hiding and clicking pictures of celebrities.


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