Paparazzi are freelance/ independent photographers who take random or candid pictures of celebrities/high profile people, generally, while they go about their daily routine, and sell such photographs to media houses/newspapers/magazines[1] or exploit it commercially in any other manner, to make a living.
A photograph is considered to be an artistic work[2] protectable under the copyrights regime in India[3], wherein the person taking the photograph is the author[4].
The Copyright Act, 1957 protects the labor and original skill which is involved in taking the photograph. For instance, setting the angle and selecting the moment to capture the picture requires labor and skills and thus is protectable under the act.[5]
A photographer is the author of the photograph taken by him/her[6] and is considered to be the first owner of its work, except when the photograph is taken for the valuable consideration at the instance of any person or when the photograph is taken in the course of employment under a contract of service or apprenticeship for publication or reproduction in a newspaper or magazine, and when an agreement to the contrary doesn’t exist.[7]
Paparazzi will be the first owner of the photograph taken by him unless the image is sold off or the ownership in the copyright of the image is assigned to a media house by the paparazzi.
The ownership of the copyright in a photograph taken of a celebrity in a public place, for editorial purposes, would vest with the news media company or photographer and not with the celebrity. For Instance, In the case of Splash News & Picture Agency, LLC v. Maraj, C.D. Cal., No. 2:20-cv-00551, filed on 19/01/2020, Niki Minaj was sued over posting her picture taken at public places on her Instagram account. It was pleaded by splash in the case that it owned the copyrights to seven photos taken of Minaj at public appearances and the defendants’ unauthorized use by posting it to her Instagram without authorized permission by the owner harmed the existing and future market for the original Photographs.[8]
Nevertheless, the ownership of copyrights in photographs of celebrities, in many instances, might collide with the privacy, publicity, and performer’s rights of such celebrities.
The landmark judgment of the Supreme court of India in the case of K.S. Puttaswamy & Anr. V. UOI and ors. established that, ‘Article 21 and Part III of the constitution guarantees protection of the right to privacy as an essential part of the right to life and personal liberty’. Among the coram of judges, justice Sanjay Kishan Kaul in the case, recognised publicity rights under the ambit of right to privacy[9] by citing the Second Circuit’s decision in Haelan Laboratories Inc. v. Topps Chewing Gum Inc[10], where it was deduced that, ‘An individual has the right to exercise control over widespread portrayal of his/her image or life for the purpose of commercial use without their consent’.
Thus, a photographer or news media company shall not infringe upon the privacy of a celebrity in the wake of their ownership of copyrights in photographs or their Right of the Press.
The house of lords in the case of Cambell v. MGN Ltd[11] noted that “the widespread publication of the photograph ofNaomi Campbell leaving a rehabilitation clinic, which was published in The Mirror, a publication of MGN, was an intrusion of privacy of her personal information, which revealed the person in a state of humiliation and severe embarrassment.
Similarly in the USA, TheSupreme Court of Missouri, in the case of Dorthy Barber v. Time Inc.[12]where photographers unauthorizedly and forcefully entered into Dorthy Barber’s hospital room and photographed her during her delivery despite her protests, held that,“whatever may be the right of the press, tabloids or newsreel companies to take and use pictures of persons in public places, certainly any right of privacy ought to protect a person from publication of a picture taken without consent while ill or in bed for treatment and recuperation.”
Conclusion:
Thus, when photograph of a celebrity is taken for an editorial use in public places, not infringing their privacy, or when not taken on the instance of the celebrity, then the ownership of copyrights of photograph rests with the photographer[1] or the News Media company, as the case may be, with respect to contract of service or agreement to the contrary.
[1] Rights of Owner of Photograph Under the Copyright Act, 1957. (2011) PL January 10. © EBC Publishing Pvt.Ltd., Lucknow.
Also see: B.L Wadehra. Fifth Edition. Laws Relating to Intellectual Property. P 290.
[1] Paparazzi. Access from- https://en.wikipedia.org/wiki/Paparazzi
[2] Section 2(c)(i) of the copyrights act, 1957.
[3] Section 13 of the Copyrights act, 1957.
[4] Section 2(d)(iv) of the Copyrights Act, 1957.
[5] B.L Wadehra. Fifth Edition. Laws Relating to Intellectual Property. P 289.
[6] Section 2(d)(iv) of the Copyright Act, 1957
[7] Section 17(a) and Section 17(b) of the copyrights act, 1957.
[8] Nicki Minaj Sued for Posting Photos of Herself to Instagram. Access from: https://news.bloomberglaw.com/ip-law/nicki-minaj-sued-for-posting-photos-of-herself-to-instagram
[9] 31 NLSI Rev 125 (2019). Publicity Rights and the Right to Privacy in India
[10] 202 F.2d 866 (2d Cir. 1953)
[11] [2004] UKHL 22
[12] 159 S.W.2d 291
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