Photography as an Artistic Work under Copyright Laws

    Photography as an Artistic Work under Copyright Laws

Photography which is considered as a very common skill nowadays grants certain intellectual property rights to their owners. Now these rights can give certain economical, social and legal benefits to the owner therefore to determine who is the author of such work is essential. Under copyright act the author of the photograph have been granted certain rights but whether such copyrights to the photographers are justified. Isn’t photography a machine’s output where human interaction is minimal. And if copyright is to be granted how to define the artistic creativity in photograph or shall we consider all photographs worthy of a copyright in this millennial era. The paper also discuss about the stand of orphan works in photography and the Indian copyright laws on this. Later the paper discusses about the meaning of fair use in
photograph and when it can be considered as fair use.


Photography isn’t an alien concept to anyone in today’s world every second person you will look around will be holding a camera phone or any electronic  device, capable of capturing a beautiful shot. Photography is a new trend amongst this millennial population but with this
new trend certain new rights emerged and new laws and principles comes into picture. Photographs are protected under the copyright act under the term artistic work in Indian copyright Act, 1957

Photography and copyright As per section 13 of the Indian copyright act, 1957 the act applies to:-
1. Original literary dramatic, musical, and artistic work
2. Cinematograph films and sound recording
3. Sound recording1325 The original photographs are protected under artistic works, the quality of such work doesn’t matter. As per the definition of artistic work given in section 2 (c)1326 it is not necessary to possess artistic quality for a work to fall within the category of artistic work under the Indian copyright act 1957. The category of photograph includes photolithograph and any other work produced by the process which is on the line of photography. However, the cinematography films don’t fall this as section 13 has a different category for it.
Photograph can be defined as an art of taking pictures by chemical action of light and other radiation such as heat and x rays on sensitive film or other material and it embraces xerography and similar processes.

1. Dual nature of photography The copyright arises not at the mere instance of the idea but when such idea is expressed in material form however in case of the photograph it isn’t produced in The court decided the case on the grounds by finding human skills and efforts present in the work produced it gave the example of the maps and charts which are the subject matter of the copyright both are original writings of the author. On the similar track the court held that photographs are liable to copyright protection as long as the “ideas in the mind of the author expressed

2. Digital photographers’ creative contribution: Since with the digitalisation and accessibility of camera in our hands’ photography is a dime a dozen nowadays. The copyright for photography needs to specific and purely towards artistic photograph. The broad horizon of the copyright law right now is actually compromising the art that ‘photography’ is and on what ‘photographers’ thrives on. The renowned photographers claim that today world is lacking the creativity now everybody is holding a camera there are tons of pictures available but the quality is decreasing.

What are orphan works:
Copyright work is said to be orphaned when the author of the work is untraceable. This can happen because of the various reasons such as :
 The author couldn’t have been publicly known
 The work has been published anonymously
 Or never published at all
 When it is impossible to locate the owner, such sorts of works include pictures documents stored in public libraries or museums.
 Another type is the one where the works are inherently informal, collaborative, or amorphous. Such works are very common in digital world.

Exemption under Indian copyright act, 1957; Section 52 of the acts describe certain acts where the use of copyright material is permitted. In context of photography certain relevant acts are:
1. Fair use
The doctrine of fair use allows the unauthorize use of the excerpt of the copyright work for research, private study, criticism, news, reporting, teaching, review etc. on the basis of this doctrine the copyright work can be used by any person without infringing the copyright. The term
hasn’t been defined anywhere in the Indian copyright at. However, there is one test to determine the fair use it is to check whether the use is likely to affect the armlet value of the copyright work.

2. Reproduction of work for judicial proceeding, legislative work, and with the certified copy made under the law.
The acts section 52(1)(d) says that the reproduction of the work for judicial proceedings doesn’t constitutes copyright infringement. However, the term judicial proceedings haven’t been defined by the court therefore it can be considered as the any proceedings before any court, tribunal, commission or any person having the authority to do so.

3. Storing of the work in electronic medium by non-commercial public library
Section 52 (1) (n) provides that any noncommercial library public library can store the work in electronic form provided before doing so they have a non- digital copy of the work.
4. Use of the artistic work by the author himself. It says any use of the artistic work by the author himself where he isn’t the owner of
the copyright isn’t infringement of the copyright. And where such and work is used in another work. He isn’t allowed to imitate the same thing, Under section 52(1)(v).

Photography is an artistic work, however, the copyright law fails to justify the artistic version of the photographs, by giving the copyright protection even to a photographer who has put in minimal efforts, it is actually jeopardizing the real art which photography is. In this digitalised era where 5 photos are getting added to someone’s Instagram account every hour. The copyright law for photography must dwell into the aesthetics of photography and try to protect the intellectual property which is actually worthy of protection. The whole business
of art certainly revolves around aesthetics, emotions and skills. Photograph is an author’s expression to the world how he sees it. Every picture is telling a story from a photographer’s perspective. It is something unique to a person, what can be considered as a fair use of photograph is still a question of debate, to what extend a picture can be altered to claim it as a fair use.

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