It is well evident that there is a tug of war between the celebrity’s privacy and the paparazzies with their cameras. All of us must have come across the videos of paparazzies running behind celebrities chanting their name to take their pictures outside of gyms, restaurants, weddings, functions and where not. But have you ever wondered what would be legal effects of those photographs if the celebrity who is the subject of the photograph shares those pictures that were clicked by paparazzies? Well, this article analysis the same.
A photograph is an artistic work going by the definition of section 2(c)(i) of the of the Copyright Act, 1957 and going along with section 2(d)(iv) of the Copyright Act, 1957, author in relation to a photograph is the person taking the photograph. So, it is apparently clear that a photographer is the author of the artistic work but herein something that is noteworthy is that many of the commentators are advocating for co-ownership of the photographs between the photographer who is the author and the celebs who are the subjects of the photographs.
The co-ownership of a photograph was claimed in the case of Gigi Hadid who is a famous model, she was sued by an agency namely Xclusive lee for copy right infringement for posting a picture clicked by paparazzi on her social media without consent. Surprisingly, the court in this case accepted the claim of co-ownership but that is only on the basis that the status of the copyright application was pending. So, this brings us to understand the effect of photograph which not copyrighted.
On the other hand, there is an argument of invasion of privacy of the subjects, its is quite known that French president Emmanuel Macron sued paparazzi for the same. One such event is when a French magazine which published Duchess of Cambridge, Kate Middleton’s photographs without her consent was ordered to handover all of the digital copies of photograph and was even ordered to pay € 2000 as fine.
On the question of whether celebrity can use the defence of fair use, the case of Garware Plastics and Polyester v. Telelink and Ors[1] is to be analysed wherein the court brought in the element of commercial aspect behind sharing of a copyrighted photograph into the picture in consideration of fair use or fair dealing under section 52 of the Copyright Act, 1957. Hence, the court struck down fair use as a valid defence.
Hence, it can be concluded by saying that there is a need to consider the co-ownership of the subjects of the photographs since they play an inevitable part of the photograph but the Indian Copyright Act and the judicial precedents strict in this aspect.
BY
AISHWARYA. N
3rd year BA LLB (Hons)
UPES School of Law
[1] Garware Plastics and Polyester v. Telelink and Ors AIR 1989 Bom 331