Artistic work

What is Artistic Works?

Meaning of Art

The expression or application of human creative ability and imagination, usually in a visual form like painting, sculpture, or performance, with the goal of creating works valued primarily for their aesthetic appeal or emotional impact is known as 'art'

The term Artistic means a person practicing or skilled in an art

An artistic work is any creative outcome that one can see or touch. The law protects these creations so others can't copy them without permission.

Scope of Artistic works under Copyrights:

Original works of literature, theatre, music, and art, as well as cinematograph films and sound recordings, are shielded against unauthorised use by the Copyright Act of 1957. Copyright protects expressions rather than ideas, in contrast to patents. A concept i.e. an idea is not protected by copyright.

Whose rights does copyright protect and who is known as the original owner?

The rights of authors, or those who produce intellectual property in the form of sound recordings, cinematograph films, and literary, musical, dramatic, and creative works, are safeguarded by copyright and the first owner of a work's copyright is often the author.

Definitions

Artistic works under the Copyright Act refer to works primarily creations of the mind with an aesthetic or creative aspect

Legal definition

As defined in the Copyright act of 1957, Section 2(c) , Artistic work means

i) a painting, a sculpture, a drawing (including a diagram, map or chart plan), an engraving or a photograph, whether or not anys such work possesses artistic quality

ii) a work of architecture, and

iii) any other work of artistic craftmanship

Types:

This definition is classified into three categories, and they are:

Category I

• Paintings
  

  "Wind Mountain" Columbia R
• sculptures
  

  Discobolus in National Roman Museum Palazzo Massimo alle Terme
• drawings (which explicitly includes diagrams, maps, charts, and plans)
  

  Vatican City map with certain markings denoting certain boundaries and area of the country
• engravings
  

  engravings on the Konark Sun temple, Odisha
• photographs
  

  a photo of the iconic Titanic, getting ready for its launch

Category II

works of architecture

Islamic Architecture in Fez, Morocco, Africa

Category III

Any other work of artistic craftmanship: which may serve as a catch all provision for other creative works that might not fall into the specific categories mentioned in the Act.

Warli Paintings SGNP by Raju Kasambe DSCF0200 (1) 06

General Definition

Artwork is defined as

i) A painting, sculpture, photograph, etc., that is created to be beautiful or to express an important idea or feeling: an artistic work

ii) Drawings, photographs, etc., that are included in books, magazines and other printed materials.

International Experience

Berne Convention:

Adopted in 1886, the Berne Convention addresses the rights of writers and the preservation of works. It gives authors, composers, poets, painters, and other artists the power to decide who can use their creations and under what circumstances. It is founded on three fundamental ideas and includes a number of clauses that specify the minimal level of protection that must be provided, along with additional clauses that are accessible to developing nations who wish to utilise them.

TRIPS Agreement (Trade Related Aspects of Intellectual Property Rights):

TRIPS, which is overseen by the World Trade Organisation, guarantees that all participating nations abide by uniform guidelines for safeguarding intellectual property, including creative works. It emphasises both establishing and upholding norms. For example, it mandates that governments have legal procedures in place for handling intellectual property infractions and settling international conflicts pertaining to these matters.

India's participation:

According to the Indian Copyright Act, copyright is only enforceable inside the nation's boundaries. India has joined the following international treaties on copyright and neighbouring (related) rights in order to ensure that Indian works are protected abroad and they are:

Literary and artistic creations are protected under the Berne Convention.

TRIPS Agreement: Trade-Related Aspects of Intellectual Property Rights.

Universal Copyright Convention: Aims to protect copyright internationally, providing a flexible framework for copyright protection, particularly for countries that prefer it over the stricter Berne Convention

Convention for the Protection of Producers of Phonograms against Unauthorised Duplication of their Phonograms: Protects producers of sound recordings (phonograms) from unauthorized duplication and importation of their recordings

Multilateral Convention for the Avoidance of Double Taxation of Copyright Royalties: Aims to prevent copyright royalties from being taxed twice in different countries.

Artistic Works Under the IP Law

Intellectual Property (IP) refers to creations of the mind: inventions, literary and artistic works, and symbols, names, images and designs used in commerce

Artistic creations such as sculpture, paintings, drawings, and photography; architectural designs; and technical drawings, maps, and advertisements. Since copyright exists in a work simply by its creation, registration is not required. Nonetheless, copyright registration proves that the inventor owns the work and copyright exists. In exchange for money, creators frequently give the rights to their creations to the people or businesses who can best market them. These payments, which are known as royalties, are frequently contingent on the work's actual use. With the exception of photographs, these commercial rights are only valid for the lifetime of the creator plus sixty years following their passing.

Albert Einstein sticks his tongue

Jupiter Match Work v. Kaveri Match Works, 2008 SCC Online CB17

This case is about a matchbox company (petitioner-Jupiter Match Work) that had a trademark and copyright for a horse logo since 1963. Another company (respondent- Kaveri Match Works) started using a similar RED HORSE logo in 2001, which the petitioner claimed was a copy.

The legal fight lasted 7 years, but the respondent failed to defend their case. Since the two designs were almost identical except for a minor change (the horse facing the other way), the legal board decided that the respondent had copied the original design. As a result, the respondent’s copyright was cancelled.

the disputed match box logo

An Overlap: Copyrights Act of 1957, Designs Act of 2000 and the Trade Marks Act, 1999

By giving the authors, the sole right to their original works of literature, art, music and film, the Indian Copyright Act, of 1957 seeks to protect the rights of creators. It balances public access to creative content with ensuring that authors control how their work is used, reproduced or distributed.

In addition to preventing unauthorized copying and encouraging creativity, the Act gives creators economic benefits by enabling them to profit from their creations. Additionally, it has fair use provisions to promote public interest, research and education.

Overlap of Designs Act:

In order to preserve the distinctive look of manufactured and industrial goods (such as patterns, forms and embellishments), the Designs Act of 2000 was enacted. By guaranteeing that original designers have exclusive rights, it stops others from stealing their ideas. Because copyright protection for designs expires after 50 reproductions, this regulation was necessary. By registering under the Designs Act, designers can extend the duration of their rights.

Section 15, of the Designs Act, 2000, states that:

i) if a design is registered under then Designs Act, of 2000, it cannot be protected under copyright law. instead, it will only be governed by design law, not copyright law.

ii) if a design can be registered under the Designs Act, 2000 but is not registered, its copyright protection ends once it has been reproduced more than 50 times using an industrial process, either by the owner or someone with their permission.

Ritika Private Limited v. Biba Apparels Private Limited, 2016 SCC OnLine Del 1979

The copyright protection of fashion designs is at the center of this issue. Ritu Kumar, the plaintiff, stated that the defendant had duplicated their copyrighted designs and had employed former workers to replicate the patterns.

The Delhi High Court, however, decided that if a design is used to create more than 50 outfits, copyright protection is no longer applicable under Indian law. Rather, to maintain protection, the design needs to be registered under the Designs Act. The plaintiff's claim that fashion designs needs to be registered under the Designs Act. The plaintiff's claim that fashion designs need to remain protected by copyright law was dismissed by the court.

once fashion designs are mass-produced (more than 50 pieces), they are no longer protected by copyright. Designers must register their work under the Designs Act to preserve exclusive rights.

Microfibres Inc. v. Girdhar & Co., 2009 SCC OnLine Del 1647

If an artistic work, like a painting, is used to create a design, and this design is replicated (manufactured) 50 times or more without registering it under design laws, the copyright protection over the design is waived. However, the original artistic work (the painting) still retains its copyright. This shows the law prioritizes the creativity of the original author over mass-produced industrial designs

Overlap of trademarks Act, 1999:

By granting companies and people the sole right to use their trademarks (logos, names, symbols, or any other distinguishing mark), the Trade Marks Act of 1999 was created to safeguard brand identities. It stops others from utilizing marks that are too similar and could deceive customers or damage a brand's reputation.

What sets it apart from copyright?

The Trademarks Act, 1999 does not explicitly reference Section 2(c) of the Copyright Act, 1957, but the distinction between copyright in artistic works and trademark protection is primarily addressed under Section 2(1)(zb) and Section 11 of the Trademarks Act, 1999:

1. Section 2(1)(zb) of the Trade marks Act, 1999- defines a trademark as a mark capable of distinguishing the goods or services of one person from those of others and includes devices, brands, labels, names, signature, etc. This means that an *artistic work(protected under copyright) can become a trademark if used for commercial branding.
2. Section 11 of the Trade Marks Act, 1999- Relative Grounds for Refusal of Registration- If an artistic work is already protected under copyright, it cannot be registered as a trademark unless the applicant proves distinctiveness and commercial use. This prevents misuse of copyrighted artistic work as trademarks without proper authorization.

How this connects to Section 2(c) of the copyright Act:

Titan Industries Ltd v. Ramkumar Jewellers, 2012 SCC OnLine Del 2382, the court highlighted the distinction by ruling that separate trademark registration is necessary for commercial enforcement of copyright in an artistic in an artistic work used as a brand. This connects

- section 2(c) of the Copyrights Act, of 1957 protects artistic works (paintings, drawings, photographs, etc.) by granting exclusive rights to the creator.

- however, if the same artistic work is used for branding (such as a company logo), it must be registered as a trademark under the Trademarks Act,1999

- once registered as a trademark, the artistic work ceases to be protected under copyright law and instead falls under trademark law.

Comparison of Copyright Act, 1957, Designs Act, 2000 and Trade Marks Act, 1999:

Aspect	Copyright Act, 1957	Designs Act, 2000	Trade Marks Act, 1999
Purpose	protects artistic, literary, musical and cinematic works from unauthorised use	protects the visual appearance of industrial or manufactured goods	protects brand identity (logos, names, symbols) to prevent consumer confusion.
Scope of protection	creative works like books, painting, music, films, and photographs	Industrial designs, patterns and product aesthetics	business brand names, logos and symbols
Requirement for protection	Automatic upon creation, no registration required	must be registered for protection	requires registration for full legal protection
Duration of protection	Lifetime of creator plus 60 years	10 years (renewable for another 5 years)	10 years (renewable indefinitely)
Overlap with other laws	If an artistic work (example: textile print) is mass produced (50+ times), it loses copyright protection unless registered under the Designs Act.	If a design is registered under the Designs Act, copyright protection does not apply.	A logo or symbol may be protected under both trademark and copyright if it has artistic originality

Artistic work vs works of art:

"Works of art" that are wholly produced by artificial intelligence (a "generative AI program"), without creative human guidance, and /or without creative human post-processing are not protected by copyright. in 2008, the Dutch Supreme Court decided that copyright protection necessitates "a form that is the result of creative human labor and thus of creative choices and is thus the product of the human mind." The level of creativity and detail required to teach an AI program to produce a copyrightable output is currently unknown. There is currently no case law, experience, or comparable information available.

Protection of Foreign Works in India:

India protects the copyrights of works from the nations included in the International Copyright Order as though they were Indian works.

The International Copyright Order protects the copyright of citizens of nations that are signatories to the TRIPS Agreement, the Universal Copyright Convention, and the Berne Convention for the Protection of Literary and Artistic Works. Appendix IV contains a list of these nations. .

Importance of Moral Rights in protecting Artistic Works:

What are moral rights?

Moral rights are legal protection that safeguard the personal and reputational interests of the creator, beyond the financial aspects (like earning royalties). These rights ensure that the creator's connection to their work remains intact, even if they no longer own the economic rights (such as selling or licensing the works).

A creator's personal rights over their work are referred to as moral rights. They come from the French phrase "droit moral," which means "moral rights" in literal translation. It depends on the relationship between a writer and their work. Along with economic rights, moral rights give the author personal and reputational worth for their work.

Link to Artistic works under the Copyrights act:

In India, the Copyright Act of 1957 provides for protection for both economic rights (like selling and distribution the work) and moral rights. For artistic works, moral rights are codified under Section 57 of the Copyrights act, 1957.

Components of Moral rights in relation to artistic works under section 57 of the Copyrights Act:

Right of attribution

It is the author's right to be acknowledged as the work's creator. For instance, if someone does a painting, they should always be given credit for it, whether it's in a movie, book, or gallery.

Right of integrity

The author has the right to object to any changes that will hurt their reputation or alter the original meaning of the work. For instance, if a film director develops a movie, they have the right to constrain others from editing it in a way that alters the original content or artistic expression.

Amar Nath Sehgal v. Union of India, 2005 SCC OnLine Del 209

In the case of Amar Nath Sehgal v. Union of India, 2005 SCC OnLine Del 209, the Union of India commissioned artist Amar Nath Sehgal to create a large bronze mural for Vigyan Bhawan in New Delhi. After 15 years, the mural was dismantled in 1979 due to building renovations. The mural was broken into parts for removal, and Sehgal argued that this destruction amounted to mutilation, damaging his reputation and the integrity of his work. The Union of India, on the other hand, claimed ownership of the mural and the right to dispose of it as it saw fit. The court, referencing Section 57 of the Copyright Act (which protects moral rights), ruled that the destruction of the mural was a violation of Sehgal’s moral rights, specifically his right of integrity. The court issued an injunction ordering the Union of India to return the remains of the mural to Sehgal, granted him the right to recreate and sell it, and awarded him damages of ₹5 lakh for the harm caused to his reputation.

Right to Divulgation

An author has the right to decide when their work is complete and can choose to disclose it at that point. Besides the usual rights, there is also the "right to withdraw," which allows the author to remove their work from the market. However, this right can sometimes be waived through a contract with a severability clause. In India, it is unclear whether moral rights, including the right to withdraw, can be fully given up or not, as the law does not clearly establish this. In, Sartaj Singh Pannu v Gurbani Pvt Ltd, 220 (2015) DLT 527, Delhi High Court that a voluntary waiver is valid if it is not against the public policy and voluntariness is ascertained

Conclusion

The protection of various facets of artistic and commercial works depends on intellectual property regulations, such as the Copyright Act of 1957, the Designs Act of 2000, and the Trademarks Act of 1999. Copyright guarantees that work of literature, art and music are shielded from unapproved duplication. However, for ongoing protection, artistic creations that are employed in industrial production might need to be registered under the Designs Act. In similar vein, trademarks protect brand identification and avoid customer misunderstanding.

Although these laws occasionally overlap, they have different functions: trademark law protects brand identity, design law safeguards the distinctive look of industrial products, and copyright protects creative expression. by being aware of these distinctions, companies, designers, and artists can efficiently safeguard their intellectual property while encouraging creativity and fair competition.