In the complex realm of copyright, a photograph of a sculpture presents a fascinating intersection of creative rights. The sculptor enjoys copyright protection over his/her artistic work (the sculpture) while the photographer enjoys copyright protection over the photograph he took.
A sculpture comes within the purview of artistic work as per Section 2(c) of the Indian Copyright Act, 1957. Therefore, the owner of the sculpture enjoys the right to reproduce the work in any material form including the storing of it in any medium by electronic or other means; or depiction in three-dimensions of a two-dimensional work; or depiction in two-dimensions of a three-dimensional work, to communicate the work to the public, to issue copies of the work to the public not being copies already in circulation, to include the work in any cinematograph film to make any adaptation of the work; to do in relation to adaptation of the work any of the aforementioned acts as provided in Section 14(c) of the Indian Copyright Act. This would mean that the sculptor has the right to take photos, videos or make drawings of the sculpture.
However, Section 52 (1) (t) of the Indian Copyright Act, 1957 provides an exception to the said exclusive rights. Commonly known as the Freedom of Panorama, the making or publishing of a painting, drawing, engraving, or photograph of a sculpture, or other artistic work does not amount to Copyright infringement if such work is permanently situated in a public place or any premises to which the public has access. This means that the photographer of a sculpture would generally have to obtain permission from the copyright owner of the sculpture unless it is situated in a place accessible to the public. It is pertinent to note that Section 13 of the Copyrights Act explicitly states that, copyright may exist in a work as long as it is original. It does not expressly exclude infringing works. Therefore, a copyright may exist in the photograph of a sculpture whether or not authorisation was acquired. Nevertheless, such a copyright is likely unenforceable if no authorisation was obtained from the owner of the work as per the provisions of the Act.
Given the copyright owners’ rights in artistic works listed in Section 14(c) of the Copyright Act, it is apparent that consent of the owner is necessary for the creation or distribution of a pictorial representation of a protected two-dimensional or three dimensional work. However, the work would still have copyright when it has been created, with or without permission. There is a lack of clarity in the statute that a pictorial depiction of a work in the public premise in any dimension could not be made or disseminated by anyone without authorization from anyone.
It is quite uncertain as to what happens when a photograph of a work situated in a public place is made. Such works would not be copyrightable taking into consideration the unprotected copyright status of these works under Section 52(1)(t) of the Act. However, if the same satisfies requirements for copyright such as originality, one could contend that a two-dimensional representation (eg., photograph) of a work permanently situated in a public place or any premises to which the public has access would be covered by copyright.
The Indian courts while dealing with similar cases have been sensitive towards the author of the works even though they are situated in a public place. In the case of St Art India Foundation & Anr. v. Acko General Insurance CS(COMM) 822/2023, the Defendant had reproduced the entire mural titled ‘Humanity’ belonging to the plaintiff for commercial benefit. The Defendant in this case relied on section 52(1)(t) & (u) as the mural was painted on a public building situated in a public place. However, the Delhi High Court while passing an interim order in this case stated that ‘The primary question raised in this suit concerns whether the Defendant’s conduct would constitute fair dealing or not under the provisions of the Copyright Act, 1957. The said issue would have to be adjudicated. There is no doubt in the present case that the advertisement of the Defendant reproduced the mural. There could not have been a presumption that the same was a public domain work that could be used in the manner as the Defendant has done. The same is not for a mere public messaging but for an advertisement – albeit, with a social cause. The use being for a commercial purpose by the Defendant, the question whether the same qualifies as fair dealing or fair use, would require to be examined.’ If the court is to apply the limitations in Section 52 squarely the act would not amount to infringement. However, since the mural even though situated in the public domain is used for commercial gain, such a conclusion may be unfair upon the owner of the Copyright. The above case is still at the interim stage and the court has not yet provided a final ruling.
The dynamic interaction between photography and sculpture is both exciting and complex. As a tangible expression of an artist’s vision, sculptures are protected to preserve their uniqueness. However, once it is photographed, further layers of artistic interpretation are added, posing issues related to ownership rights. Creating a balance of rights guarantees that creativity will continue to flourish unhindered in a world where art continues to evolve.
By Ananya Reghu
Disclaimer: The content on this blog is for informational purposes only and does not constitute legal advice.
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