The Case of Rogers V. Koons:

Background
In photography, copyright refers to the ownership over the photograph created by the person. The moment the shutters are released, according to the law, the person produced that photograph. This indicates that according to photographic copyright regulations, the copyright belongs to whoever pressed the shutter.

"Section 2(c) of the Copyright Act of 1957[1]" in India provides protection for photos taken as artistic works. However, it is not necessary for the work to be of an excellent level to constitute as an artistic creation [thus a terrible shot is still legally protected]. An image needs to be an original creation that required some level of skill and effort to create in order to be protected under copyright laws for artistic works in general.

[2]According to "Section 25", photographs in India are protected against infringement by copyright for a duration of 60 years following the date of publication, which need not be actually published. Various nations have distinct copyright terms. For example, the Berne Convention stipulates that copyright protection must last at least 50 years, although copyright protection in the US and EU lasts for 70 years. The Berne Convention, the UCC, the TRIPS, are just a few of the international agreements that the Indian Copyright Act complies with.

To ensure copyright protection in signatory nations to the convention and accord, the International Copyright Order was passed. As a result, India offers protection for international artistic creations.

The author is typically the first and original owner of the copyright to the art that he creates. Until there is a specific contract otherwise, the photographers will be the first proprietor of any photographs. Therefore, even if someone own the camera and equipment's and another person takes a beautiful photo with it, the other person owns the copyright to the picture. The photographer's rights include the authority to publish his photos, make any necessary adaptations to the work, and duplicate[3].

The photographers have the option to register the image's copyright. Nevertheless, registration is encouraged but not obligatory for copyright protection. The artwork is protected by copyright as soon as it is produced. The expression of a concept is protected by copyright law, but not the idea itself. [Therefore, if X and Y both take photos of the same sunrise, X can't stop Y; however, if Y use my photo of the sunrise on a T-shirt, X can stop him.] Photographers' copyright infringement is protected under "Section 51"[4]. Any infringement of author rights is considered a copyright violation.

Additionally, Indian judiciary have ruled that violating the photographer's copyright involves publishing a photograph without his consent by duplicating it from previously published content. Nonetheless, someone who is not the photographer may use the pictures as long as they don't intend to gain excessively from them. The images can be used in court cases, legislative hearings, and research or educational projects. This is acceptable use of images without the producer's prior consent and comes under the fair use doctrine.

In India, the rights of photographers are largely protected by the comprehensive "Copyright Act, 1957". Although not specifically stated, the law also covers online images taken by photographers in addition to traditional/paper pictures. The present copyright legislation has a solid statutory foundation for copyright protection and can properly address the issues raised by advanced technologies[5].

• Indian Copyright Legislation

  According to "Article 14", a copyright is the sole right to perform or permit the performance of any act with regard to a work or any significant part. The power in this scenario is granted to the proprietor of the artistic work, thus it is important to know who that person is in this regard as well as who owns the copyright to the picture[6].
• The first owner of the Copyright:
  • "Article 2(c)(i) of Copyright Act" defines "artistic work as a painting, a sculpture, a drawing, (including a map, chart or plan) an engraving or a photograph whether or not any such work possesses artistic quality" Thus, protects both the photographer and the individual hiring him[7].
• International laws protecting photographs and photographers' rights:
  • The Berne Convention, the UCC, the TRIPS, are just a few of the international agreements that the Indian Copyright Act complies with;
  • According to "Article 2 of the Berne Convention", "the expression literary and artistic work shall include every production in the artistic domain, whatever may be its mode or form of its expression". Moreover, it says, "photographic works to which are assimilated works expressed by a process analogous to photography;[8]"
  • According to "Article 7 of the Berne Convention[9]" for the Protection of Literary and Artistic Works, it is up to the law to define the terms for the photographs' copyright. However, the convention stipulates that at least a period of time is 25 years following the date of publication.
  • Another agreement that safeguards creative works is the UCC. The protection of images is also included in this Convention, which has around 50 signatories. The minimum protection period for images under this Convention is 10 years.
• Comparison of the Two Works:
  • "Left: Art Rogers, Puppies, 1985 � Art Rogers. Right: Jeff Koons, String of Puppies, 1988"
  • From a layman's perspective, the photograph in right has a substantial similarity if compared to the photograph in left. It is almost identical.
• Facts of the Case in Brief:
  • Art Rogers, the complainant photographer, had the ownership and copyrighted the image of Puppies, which respondent Jeff Koons utilized to make the sculpture String of Puppies. The sculpture that he created, according to the respondent Koons, was intended to make a critical statement about both the original photograph and the "political and economic" institution that produced it. In an art exhibit, he sold copies of String of Puppies to collectors. The respondent claimed that the used of the copyrighted work was a fair use because it was a parody of the original, and the complainant had filed a claim for copyright violation. The trial court's ruling that the respondent did not make a fair use of the picture he used to make the sculpture was challenged[10].
• Issue:
  • Whether the respondent's copying of the complainant's photograph for the creation of sculptures meant to provide societal comment on the image of the picture qualified as a fair use.
• Judgement: The appellate court, upheld its earlier ruling that the respondent was not immune to a fair use claim. Although the respondent's duplication may have been a satirical criticism of materialistic social structure in general, it was determined that the "purpose and character" component weighed against fair use since it "was done in bad faith, primarily for profit-making motives, and did not constitute a parody of the original work.[11]" The court additionally determined that respondent duplicated the core concept of the image almost entirely and went beyond what was allowed by the fair use concept. As a result of respondent's work being predominantly commercially, the court also found that "the probability of future harm to [plaintiff's] photograph is anticipated, and [the] market for his work has been prejudiced.[12]"

Infringement Of Copyright

• Substantial Similarity
  The judiciary apply a standard called as "substantial similarity" to determine whether or not a person has violated somebody else 's copyright. Nonetheless, it is neither straightforward nor comprehensive to determine whether a work is substantially comparable. Although there is no precise rule, the courts can reach a judgement using certain standards. A court can determine whether the use is minor or requires further investigation by examining how identical the new piece is to the original piece.
  
  The similarity aspect makes up the second component of substantial similarity. Not simply the concept, but the actual artistic composition must be same. Ideas, as well as facts, procedures, elements, and other data of this sort, are not protected by copyright. An idea�and not a particularly original one at that�is a poetry about spring flowers. However, the precise word selection, sentence construction, punctuation, and sometimes length of each sentence are all distinctive artistic elements of the original work. Therefore, a court must evaluate the two works to determine whether the new one is sufficiently similar to the original that it was probably copied. There is a good chance that a court would reach the same finding if the typical person would mistake the new work for the original piece.
   
• Fair Use vs. Substantial Similarity
  If fair use is claimed, as opposed to substantial similarity, the person is acknowledging that they purposefully and consciously copied a copyrighted work, but for a legitimate purpose. Fair use is a defence in this regard. Under certain conditions�typically for educational purposes�a person may intentionally use a portion of an original work without a licensing or authorization from the copyright owner[13].
  
  "Substantial similarity" is used to examine whether or not a claimed new work genuinely duplicates another copyrighted material that was produced first. Substantial similarity is not at all a defense.
   

Doctrine Of Sweat And Brow And Modicum Of Creativity Doctrine

The "modicum of creativity" test established in "Feist Publication Inc. v. Rural Telephone Service"[14] by the United States SC has replaced the "sweat of the brow" notion as the accepted definition of "originality." Rather than focusing on originality, the "sweat of the brow" principal grants copyright protection based on the labor, skills, and capital financing made by the author.

The court completely rejected this theory and maintained that a creation must not only be the result of autonomous creation but must have "a modicum of creativity" if wanted to be considered original. The Court pushed for "creative originality" and established the new standard to safeguard creations based on the bare minimum of creativity. According to this principle, originality exists in a piece of work if it was produced with enough intellectual inventiveness and judgement. Although a certain level of innovation is required for a work to be protected, it doesn't have to be high[15].

Authorship Vs Ownership

Section 17(a) outlines who has the original ownership of a literary creation and states that, in the event of a literary or artistic creation, despite the lack of a contract made in the course of employment, the owner of a tabloid, journal, or periodical shall have ownership over the work. It continues stating that, even in the absence of a written agreement, the individual who arranged for the picture to be taken in return for a valued consideration is the original owner of the image.

Interpretation of S17(a)- an agreement on the ownership of the picture may exist involving both the employer and the employee. If the artwork is not created by employer or during the term of employment, ownership of the creation belongs to the author. The photographer will be granted ownership of the image in the following situations.

The moment you snap a shutter, copyright is created. The photographer is regarded as the image's "creator." Normally, the photographer is the sole owner of the copyright in a composition they have produced, except in situations mentioned above[16].

Exception To Copyright Infringement

In India, several activities are permitted under Section 52[17], however they are not regarded to be copyright infringements. Fair dealing with a piece of literature, music, theatre, or another creative work that is not a computer programme for the following reasons:

Personal use for research

• Covering recent affairs in print media of any kind.
• Via a cinematic production, broadcast, or photograph.
• Reproducing a report of the court case or the court case itself.
• Publication or reproduction of musical, literary, dramatic, or creative work, created by the secretariat of the legislative.
• The authorized copying of any artistic work in accordance with any currently in effect law.
• Reading aloud in front of an audience any suitable portion from a published piece of fiction or theatre.
• The creation of sound with or by the permission or approval of the proprietor of the right in the work.

Remedies Against Infringement

Criminal, civil, and administrative reliefs are available for copyright violation.

• Criminal remedies (Sections 63�66)[18] includes the handing over or delivery of the copyrighted to the owner as well as it prescribes for the imprisonment and imposition of a fine or both.
• Civil remedies cover damages, injunction and accounts, handover of infringing copies, and conversion damages.
• Administrative remedies include petitioning Copyrights to forbid the importation of unauthorized copies into India and handing over confiscated copies to the copyright holder.

Conclusion
The basic purpose of copyright is to safeguard expression while motivating others to actively develop upon the concepts and information it conveys, not to compensate creators for their labour. However, the benchmark of originality cannot be raised significantly that the majority of works would be excluded from copyright protection; on the other hand, it must not be set so minimal that the level of legal protection for works becomes so weak that any derivative work that only makes minor changes to the original creation will come under the law's safeguard and protection.

Hence, in this particular case the defendant has used the work of the plaintiff and has copied it exactly without adding any creativity of his own. The defendant claimed the defense of fair use however, he failed to prove the same and did not qualify to use the defense of fair use.

End-Notes:

1. THE COPYRIGHT ACT 1957, ACT NO. 14 OF PARLIAMENT, (INDIA) 1957, https://copyright.gov.in/Documents/CopyrightRules1957.pdf
2. THE COPYRIGHT ACT 1957, ACT NO. 14 OF PARLIAMENT, (INDIA) 1957, https://copyright.gov.in/Documents/CopyrightRules1957.pdf
3. Raja Selvam, Copyright Protection For Photographers in India, Selvam & Selvam, 14 Feb 2017, https://selvams.com/blog/copyright-protection-photographers-india/
4. THE COPYRIGHT ACT 1957, ACT NO. 14 OF PARLIAMENT, (INDIA) 1957, https://copyright.gov.in/Documents/CopyrightRules1957.pdf
5. Asia Jasmine , Law Relating to Photography and Rights of Photographs Over Content, Legal Desire, https://legaldesire.com/law-relating-to-photography-and-rights-of-photographers-over-content/
6. Siddhant Sarangi, Copyright Registrations of Photographs, Ipleaders , 21 Feb 2018, https://blog.ipleaders.in/copyright-registration-of-photographs/
7. THE COPYRIGHT ACT 1957, ACT NO. 14 OF PARLIAMENT, (INDIA) 1957, https://copyright.gov.in/Documents/CopyrightRules1957.pdf
8. Berne convention for the protection of literary and artistic works, of September 9, 1886, https://www.wipo.int/treaties/en/ip/berne/
9. Berne convention for the protection of literary and artistic works, of September 9, 1886, https://www.wipo.int/treaties/en/ip/berne/
10. Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992), https://h2o.law.harvard.edu/cases/5190
11. Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992), https://h2o.law.harvard.edu/cases/5190
12. James Traub, Art Rogers Vs. Jeff Koons, Design Observer, Essay, 08 Jan 2021, https://designobserver.com/feature/art-rogers-vs-jeff-koons/6467
13. Sara Hawkins, Copyright Fair Use and How it Works for Online Images, Social Media Examiner, 23 Nov 2011, https://www.socialmediaexaminer.com/copyright-fair-use-and-how-it-works-for-online-images/
14. Feist Pubs., Inc. v. Rural Tel. Svc. Co., Inc., 499 U.S. 340 (1991)
15. Libby Peterson, 6 Copyright Infringement Cases Photographers Should Know About, Range Finder, Business + Marketing, 27 Jan 2021, https://www.rangefinderonline.com/news-features/business-marketing/copyright-infringement-cases-photographers/
16. Vivek Kumar Verma, Authorship and Ownership of Copyright in a Photograph in India, Indian Case Law, 30 Jul 2020, https://indiancaselaw.in/authorship-and-ownership-of-copyright-in-a-photograph-in-india/
17. THE COPYRIGHT ACT 1957, ACT NO. 14 OF PARLIAMENT, (INDIA) 1957, https://copyright.gov.in/Documents/CopyrightRules1957.pdf
18. THE COPYRIGHT ACT 1957, ACT NO. 14 OF PARLIAMENT, (INDIA) 1957, https://copyright.gov.in/Documents/CopyrightRules1957.pdf