Can street art be copyrighted? What about murals in public places? If either of these questions intrigue you, there’s an interesting copyright battle for you to follow at the Delhi High Court regarding a mural painting titled ‘Humanity.’ St+Art India Foundation – a non-profit organization invested in incorporating art in urban spaces – along with Paola Delfin Gaytan, Mexican painter and muralist, filed a lawsuit against Acko General Insurance for using Gaytan’s mural in its advertisements. While the former claimed copyright and moral rights over the artwork, the insurance company said that the placing of the mural in a public space exempts it from copyright infringement. Case developments as recent as an oral order by Justice Pratibha Singh in November 2023 highlight some interesting aspects of India’s copyright laws.
Acko denies foul play: The non-profit alleged that Acko used the mural for commercial benefits in a hoarding and multiple social media posts, violating the organisation’s copyright. However, the insurance company in a letter sent to St+Art Foundation on April 3, 2023, argued that Section 52(1)(t) of the Copyright Act, 1957 allows artistic work permanently placed in public areas to be used by anyone under fair use.
“The artistic work referred to by you in your Notice… is painted on a public building situated in a public place i.e. the Sassoon Docks in Mumbai. Therefore, the use of the same in a photograph or as part of our client’s advertising campaign is fair use and would not amount to infringement of copyright because your client’s artwork is permanently situated in a public place/premises to which the public has access. Thus, our client is well covered within the fair use exceptions provided under the Act,” said Acko legal counsel as per reported by the Indian Kanoon.
During the court proceeding, Acko also said that the hoarding in question had been removed.
St+Art claims artwork used for commercial purpose: In response to Acko’s letter, St+Art argued that the mural is temporarily situated at Sassoon Docks and that the artworks mentioned in Section 52(1)(t) are limited to “works such as paintings, drawings, engravings, or photographs of sculptures or other artistic works under a different subclause.”
“The mural in question is a painting, falling under a separate category, and thus, the provision under Section 52(1)(t) of the Copyright Act, 1957 does not apply,” said St+Art.
It also added that the mural was incorporated in the ads in such a way that it served as the principal subject of the ad rather than simply a background. Stating that the purpose of the hoarding as well as the posts was to promote the company’s business, rather than create a social impact as intended by the foundation and painter.
Court asks Acko to remove all mural content but fair dealing concern remains:
After the November hearing, Justice Singh said that the hoarding is “clearly an advertisement” and further asked the company to remove related social media posts within 72 hours of issuing the order. However, Singh said that the primary question in this lawsuit concerns “whether the Defendant’s conduct would constitute fair dealing” as per the Copyright Act.
“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,” said the court.
Stating that the court has not made an opinion on the legal issues of the case, the matter will next be heard on February 2, 2024.
Will the permanency of the artwork impact the final judgement?
An interesting aspect of this case is its take on the presence of a copyrighted work in a public place. Sassoon Docks is an area known for its arts festival where local artists get a chance to showcase their work before the public. Many visitors take photos of these artwork, at times interacting or touching permissible works. All of this is acceptable since it’s an art exhibition but Section 52(1)(t)’s clause about a permanency seems to add a nuance to the copyright aspect of such activities.
As explained by Rahul Ajaatshatru, a Delhi-based lawyer, certain acts are exempted from infringement action which would otherwise be infringement under the Copyright Act. Reproducing the photograph of a painting or a mural shall be ordinarily an exclusive right of the copyright owner. A mural exhibited in a public place when affixed ‘permanently’ gives exemption from an action of copyright infringement. It allows a person to copy, draw, photograph the artwork without any fear or trouble. However, when something is on a temporary display, the owner of the art can object to re-publication and posting. This also means that in case of an objection, the copy may have to be removed. It will be interesting to see how this aspect of the argument will be addressed by the court.
Food for thought: St+Art’s stand on the permanency of the art puts some stories like Saki’s ‘The Background’ short story into perspective. The story talks of a young man who wanted tattooed on his back the magnum opus of a famous artist. Following the artist’s death, the young man was subjected to many copyright restrictions as the artwork was permanently tattooed on his body. What’s interesting is that while the man eventually got his freedom, there was little to no consideration given to the life of the man on whose back the masterpiece was tattooed. Even though the art could not have been created without the man, his existence remained in the background once the tattoo on his back lost its value – indicating the potential extent and limits of an artwork on its surroundings.
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