A

Project File
On
Artistic works under Copyright Act, 1957
 Synopsis

 Introduction
 Subject matter of copyright
 Artistic work
 Key elements of copyright for artistic work
 Documents required for Copyright Artistic Work

 Rights conferred in a copyrighted artistic work

 Copyright infringement
 Remedies for infringement
 Landmark judgments related to Copyright infringement
 Conclusion
 Bibliography
 Introduction

In India, the earliest law of copyright was enacted by the British during the realm of
East India Company that is the Indian Copyright Act, 1847 which was passed for the
enforcement of rules of English copyright in India. After it, by Copyright Act 1911,
this law was repealed, replaced and applied to all British colonies including India.
Further, it was again modified in 1914 by the Indian Copyright Act, 1914, which
remained applicable in India until replaced by the Copyright Act, 1957 by the
parliament of sovereign India.

Copyright law as its name suggests is the simple law that suggests if you create
something you own it and only you get to decide what happens next with it. In India,
law related to copyright is governed by the Copyright Act, 1957. The objective of this
copyright law is mainly twofold: first to assure authors, composers, artists, designers
and other creative people, who risk their capital in putting their works before the
public, the right of their original expression, and second to encourage others to build
freely upon the ideas and information conveyed by a work.

Copyright for Artistic work is a privilege given by the law to the originator of artistic
works. It safeguards the rights of authors over their creations, consequently protecting
and rewarding artistry. The protection provided by copyright to the efforts of authors,
artists, and designers create an atmosphere favourable to creativity, which persuades
the author/writer to create more. Copyright is used by the author to protect the
original expression of an idea in the form of some creative work, but not the idea
itself.
 Subject matter of copyright

All subject matters protected by copyright are called ‘works’. Thus according
to Section 13 of The Copyright Act 1957, it may be subjected for the following
works:

 Original Literary Work,

 Original Dramatic work,
 Original Musical work,
 Original Artistic Work,
 Cinematography films, and
 Sound recordings.

ARTISTIC WORK
Any work which is an original creation of an author or an owner fixed in a tangible
form, is capable of being entered into the Register of Copyrights, irrespective of the
fact that whether such work posses any artistic quality or not. The definition of
Artistic work as laid down under Section 2 of the Copyright Act, is fairly
comprehensive and descriptive. Copyright shall subsists in any original artistic work
comprising of paintings, sculptures, graphics, cartoons, etchings, lithographs,
photography, drawings, plans, maps, diagrams, charts, buildings, models of buildings,
moulds and casts for sculptures.

Copyright for Artistic Work covers all the original artwork and what is required for
copyright protection in an artistic work i.e. ‘originality’. The originality essential as
per the Copyright Act is a minimal amount of originality and what is prevented under
the Copyright Act is the making of copies without the permission of the author.

According to section 2(c) of the Copyright Act ‘Artistic work’ means-

 A painting,
 A sculpture,
  A drawing,
 An engraving or a photograph, whether or not any such work possesses
an artistic quality,
 A work of architecture; and
 Any other work of artistic craftsmanship.

It helps the author to protect his/her artistic creations. Artistic creation includes
crafts, pottery, woodworks, jewellery making, embroidery working, etc. Once the
author copyrights its work he can publish, reproduce, or change the art whenever
required and also can plan to connect with the public regarding your copyright in
artistic creation. Also, a creator can copyright paintings, artwork, drawings, and so
on.

Below mentioned are the types of artistic work that are entitled to copyright
protection, including-

Work of architecture “Work of architecture” means any building or structure having

an artistic character or design, or any model for such building or structure as provided
under Section 2 (b). In addition to this, according to Section 13 (2) (iii), in case of
work of architecture, the work shall be located in India. Further, read with Section
13(5) in case of work of architecture, copyright shall subsists only in the artistic
character and design and shall not extend to process or methods of construction.

Photograph “Photograph” includes photo-lithograph and any work produced by any

process analogous to photography but does not include any part of a cinematograph
film as provided under Section 2 (s) of the Copyright Act.

Engravings “Engravings” include etchings, lithographs, wood-cuts, prints and other

similar works, not being photographs as provided under Section 2 (i) of the Copyright
Act.

Work of Sculpture “Work of Sculpture” includes casts and moulds as provided

under Section 2 (za) of the Copyright Act.

Work capable of being used in relation to goods or services. A work capable of being
represented graphically, which is capable of distinguishing goods or services of one
undertaking from those of the goods or services of another undertaking shall be
considered for the purposes of registration “Work capable of being used in relation to
goods or services” such as brand symbols, labels logos, packaging, Cartoons etc.

Key Elements of Copyright for Artistic Work

Certain key aspects that are required to be considered for Copyright for Artistic work
and also to avoid copyright infringement while creating your artwork.

A Requirement For Copyright Registration

The work must be original, creative and should be capable of fixing in the tangible
form

Details Of The Work To Be Protected

Novel works of authorship, such as books, articles, songs, photographs, sculptures,
choreography, sound recordings, motion pictures, etc.

Duration Of Protection

It calculates as the Author’s life plus 70 more years.

The Owner Enjoys The Privilege Of Various Rights

The owner has the right to reproduce the work, making of imitative works,
distribution, public performance, and exhibiting the copyrighted works.

Replication Of Work

Only creators and authorized individuals can replicate the original work with no fear
of copyright laws.

Who Can Obtain The Copyright?

Authors, artists, writers, architects, and other creative professionals.

The Tangible Form Of Work

Original works in a tangible form can be protected under copyright laws.

Documents required for Copyright Artistic Work

 Details of the Applicant.

 A proper description of the work along with the date when the work was first
published.
 3 copies of the work (If published),2 copies of the manuscript (If work not
published).
 Description regarding the subject and language of the work.
 Authorization concerning to work if the work is not the work of the applicant.
 For Copyright for Artistic work, NOC from the owner is required. However, if
the applicant is different from the author, NOC from the publisher is required.
(if the publisher is different from the applicant).
 Demand Draft/IPO of the respective fees as per the work.
 If the work is to be used on a product, then a NOC from the trademark office is
required.
 If the application is being filed through an attorney, the specific Power of
Attorney signed by the attorney.

Copyright for Artistic Work – Duration

The duration of the copyright artistic works are valid up to the life of the artist + 70
years. The copyright had expired for the Artist who died before January 1st, 1955.
For unpublished works, copyright lasts until the work is first published to a span of
the life of the artist + 70 years.
 RIGHTS CONFERRED IN A COPYRIGHTED ARTISTIC WORK
Section 14 of the Act gives and elaborates different kind of rights which are
conferred and available to each kind of work. Sub section (c) of Section 14 talks
about rights conferred in the case of artistic work; every artistic work has a right to
reproduce the work in any material form which may include depiction in three
dimensions of two dimensional works or in two dimension of three dimensional
work; Right to communicate the work to public; Right to make adaption of the work;
Right to include the artistic work in any cinematography films.

Artistic Copyright creates a monopoly of authors over their unique creation.

Copyright is essential when some creative or artistic work is done and high praise to
its creator is to be given legally and to restricts its use for a commercial or domestic
purpose by others without prior permission of the owner.

Once a Copyright for Artistic work is registered it creates a sense of security in the
mind of the creator, that his transcript creation is protected under the Copyright Act.
The advantages of Artistic Copyright are-

 Public Display Of Your Ownership And Work

Through Copyright Registration an author’s work will be declared in the Copyright
Office’s Catalogue and will be accessible to people. It creates a public record of the
ownership of the copyright holder and enables him to take legal action against
infringers of its creation in the court of law.

 Enjoys The Privilege To Work Freely

Artistic Copyright provides the privilege to the author to work freely with
copyrighted work in other countries and vice versa.

 Passing On The Right Of Work

Through Artistic Copyright, the author can openly disclose, sell, or pass on the rights
of the work to other persons with copyright protection.

 Reputation
Another benefit of Artistic Copyright is that it gives the author the reputation that
certain work belongs to him.
 Legal Protection Of Ownership
Copyright for Artistic work helps in avoiding an expensive dispute over the original
owner if someone steals your creative work. It is implicit that the work is registered
under the Copyright Act,1976, and will give proof of your ownership and release you
of any legal trouble.

 Preventive Measures
Artistic Copyright helps in preventing others from making unwarranted use of the
author’s work. If you come upon that someone is copying the author’s work, he/she
can send a `cease’ notice. So, a person does not have to bother about legal
proceedings at a later stage.

When any one makes or develops any new work, they get copyright protection to
make sure that their efforts are doesn’t go in vain and they get the profit which they
deserve. Copyright is an exclusive right which gives its owner bunch of rights like,
reproduction, adaptation, communication and translation.

Copyright infringement
When these exclusive rights of the copyright holder are violated then it amounts to
Copyright infringement. The unauthorized or prohibited use of works under copyright
such as the right to reproduce or perform the copyrighted work, or to make derivative
works, will also amount to Copyright infringement and to prove copyright
infringement in court of law, a copyright owner must establish proof of copyright
ownership and proof of copying by direct evidence of copying or by indirect evidence
showing access to the original work; and “substantial similarity” between the original
and allegedly infringing work.

Section 51 of the Copyright act, 1957 gives the statutory definition of the Copyright
infringement: Copyright in a work is deemed to be infringed-

(a) when any person without a license from the owner of the copyright, or the
Registrar of Copyright, or in contravention of the conditions of a licence granted or
any conditions imposed by a competent authority under the Act:
 (i) does anything, the exclusive right to do which is conferred upon the owner of
the copyright, or

(ii)Permits for profit any piece to be used for the communication of the work to
the public where such communication constitutes an infringement of the
copyright in the work, unless he was not aware and had. No reasonable ground
for believing that such communication to the public would be an infringement
of copyright, or

(b) When any Person,

(i) makes for sale or hire, or sells or lets for hire or by way of trade displays or
offers for sale or hire any infringing copies of the work, or
(ii) distributes, either for the purpose of trade or to such an extent as to affect
prejudicially the owner of the copyright, any infringing copies of the work,
or
(iii) exhibits in public by way of trade any infringing copies of the work, or
(iv) imports into India any infringing copies of the work except one copy of any
work, for the private and domestic use of the importer.

Remedies for infringement

Where a person intentionally or unintentionally infringes the rights of the

copyright holder, the holder may be subject to the following remedies available
under this Act.

Civil remedies:

These remedies are given under Section 55 of the Copyright Act,1957 which are:

Interlocutory injunction

This is the most important remedy against the copyright infringement, it means a
judicial process by which one who is threatening to invade or has invaded the legal
or equitable rights of another is restrained from commencing or continuing such act,
or is commanded to restore matters to the position in which they stood previous to
the relation. Thus for granting the interlocutory injunction, the following three
factors are considered as necessary:

Prima facie case, an assumption of the court that the plaintiff can succeed in the case
and became eligible for relief.

Balance of convenience, in it the court will determine which parties suffer the
greater harm, this determination can vary with the facts of each case.

Irreparable injury, it is difficult to decide and determine on a case by case basis.

Some examples of it include- loss of goodwill or irrevocable damages to reputation,
loss of market share.

Mareva injunction

This is a particular form of the interlocutory injunction which restrains the

defendant from disposing of assets that may be required to satisfy the plaintiff’s
claim or for removing them from the jurisdiction of the Court.

Anton Piller order

This order is passed to take into possession the infringed documents, copies and
other relevant material of the defendant, by the solicitor of the plaintiff. This order is
named after the famous case of Anton Piller KG v/s Manufacturing Process Ltd,
1976. In this case, the plaintiff Anton Piller, the German manufacturer is successful
in passing ex-parte awards of restraining the use of his copyrighted products against
the defendant.

John Deo’s order

In this order, the Court has the power to injunct rather than those impeded in the
suit, who may be found violating the rights in the field of copyright. Thus this order
is issued against the unknown person, who has allegedly committed some wrong,
but whose identities cannot entertain the plaintiff.

Pecuniary remedies

There are three types of pecuniary remedies provided:

 1. An account of profit, which lets the owner seek the sum of money made,
equal to the profit made through unlawful conduct.
2. Compensatory damages, which let the copyright owner seek the damages he
suffered.
3. Conversational damages, which are assessed to the value of the article.

Criminal remedies

For infringement of copyright, the criminal remedies provided under Section 63:

1. Imprisonment, not less than 6 months which may extend up to 3 years;

2. Fine may not be less than 50,000 which may extend up to 2,00,000;
3. Search and seizure of copyrighted goods; and
4. Delivery of copyrighted goods to the copyrighted owner.
5. In the case of repeat offenders, minimum punishment terms of 1 year and fine
of 1 lakh however, the highest punishment will be the same as the first time
offender.

LANDMARK JUDGEMENTS RELATED TO COPYRIGHT

INFRINGEMENTS

 R.G Anand v Deluxe Films

This case is the landmark case as in this case Supreme Court very carefully examined
and elucidated various authorities and case laws, and following propositions were
evolved:

Copyright does not give any protection to ideas, facts, systems, themes, plots or
methods of operation, although it may protect the way these things are expressed,
arranged or the way copyright is formed.

Where the idea is same but is being developed in a different manner, the similarities
are bound to be there as the source of such manifestation is common. In such
instances courts look that whether or not the similarities are on fundamental or
substantial aspects of the mode in which that expression of copyright work is
adopted. In simple words it means that in order to take action the copy must be
substantially or materially same to the copyright work which would mean that the
defendant is guilty.

One of the best, safest and fastest way to determine that whether the copyright work
has been infringed or not is to look that when the reader, spectator or the viewer after
looking at that work is clearly of the opinion and are absolutely sure that the
subsequent work is a copy of an original copyright work.

When the theme is same but the way it is presented is so different that the subsequent
work can be looked as new work, then no infringement of copyright.

Material and broad dissimilarities also helps in proving that there was no intention to
copy original work.

A violation of the copyright must be proved by showing clear and cogent evidence
and after applying various case laws and tests aid down for this purpose.

 Cadbury India Ltd. V. S.M. Dyechem

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In this case court while dealing with the issue of infringement of copyright of artistic
work, used and evolved the “lay observer test”, which is relies on the assumption that
if the lay observer, one who is not an expert in artistic work, looks at the visual and it
seems to him the work has been reproduced from some other work then it would to
infringement of artistic work

 Burroughs W.I. LTD v. UNI-SOLE Ltd.

In this case plaintiff asked for injunction against the defendant from using the carton
as the photograph in the carton is same as the photograph used in the carton of
plaintiff. The plaintiff asked the court to refer the judgement in the Hindustan Lever’s
case, where injunction was granted even when the artistic work was not registered.
The court here adopted basic ratio of the judgement of Hindustan Lever’s case, court
said it will look into the substantial similarity between the two cartons both in nature
of get up and colour combination and essential similarity is the test and the actual
reproduction of the two cartons is not a test. If this essential similarity test is satisfied
then minor dissimilarities doesn’t affect the case of plaintiff.

Conclusion
Copyright for Artistic work is a privilege given by the law to the originator of
artistic works. It safeguards the rights of authors over their creations, consequently
protecting and rewarding artistry. The protection provided by copyright to the
efforts of authors, artists, and designers create an atmosphere favousrable to
creativity, which persuades the author/writer to create more. Copyright is used by
the author to protect the original expression of an idea in the form of some creative
work, but not the idea itself.

The copyright law is considered as an essential law of protection for a country

because it enriches the national cultural heritage of it. However, higher the level
of protection given to literary, dramatic, musical or artistic work in any country,
automatically higher is the number of intelligent creation, i.e. higher its
renown. Thus, in the final analysis, we can say for economic, cultural and social
development, it is the basic perquisites.

Bibliography
 https://copyright.gov.in/Documents/Manuals/Artistic_Manual.pdf

 https://corpbiz.io/copyright-for-artistic-work#advantages

 https://blog.ipleaders.in/an-overview-of-the-copyright-act-
1957

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