Who will reap the benefit of a picture with millions of likes? The photographer who captured the image that reached millions of people, or the subject matter in it?
A very neglected yet important question to dwell upon is whose rights will be protected in such a situation. John Locke's theory of 'Fruits of Labour' states that, when a person has worked hard on something, the society must grant him an exclusive interest to enjoy that work. In case of paparazzi photographs, the question is, who owns the photograph, the one who posed in the photograph rendering it monetary value, or the photographer who clicked the picture and captured the art to make it sell.
Photographs, as we know, are primarily protected under Copyright laws. These laws state that, as soon as a person captures something, the moment the shutter button is released in the camera, copyright protection is created over the captured picture and the photographer owns the copyright in it. On the other hand, every individual has right over his or her personality including the right to determine the personality's commercial use. A personality is a property of that person.
Recent cases outside India, have made Indian celebrities think twice before re-posting any picture clicked by paparazzi. The paparazzi, always being ready to sue and extort exorbitant amount of money from celebrities whose pictures they click, have become quite a talk in the industry and outside. Dua Lipa, the famous Hollywood singer was recently sued for sharing a picture of her "airport look", without permission and for allegedly profiting from that picture. Justin Bieber, Jennifer Lopez and Gigi Hadid are among many others who have been sued for unauthorized sharing of their own picture clicked by paparazzi and monetizing over it. Most of these cases, however, have either been settled outside the court or dismissed voluntarily. Thus, the approach that the US courts would adopt in these cases, is yet to be seen. It would be interesting to see whether the courts would consider the rights of a photographer holding copyright over her/ his work more valuable than the rights of celebrities having personality and publicity rights over themselves.
What remains as a question is, what is the situation in India. Although no such lawsuits had been reported till now, there have been many such instances where Indian courts have answered a similar situation putting personality rights above a photographer's copyright. In the case of Titan Industries Ltd. vs M/S Ramkumar Jewellelrs 2012 (50) PTC 486 (Del), the court, favoring the personality rights, held that a celebrity will always have a right to control the extent of commercial use of her/ his picture or more specifically her/ his personality, including the right to determine when, how and where her/ his identity will be used.
Although these cases do not answer the situation of a paparazzi photograph yet, they do shed light on some aspects of this situation. Indian courts have time and again tried to balance the fundamental rights of the adverse parties while adjudicating on this issue. In the case of DM. Entertainment Pvt. Ltd. v. Baby Gift House and Ors. CS (OS) 893 of 2002, the Delhi High Court, protecting the right to freedom of speech and expression, held that although the right to publicity determines the right to permit commercial exploitation or not, too much focus on famous person's publicity right would disrupt someone else' constitutional right. In the case of Indu Jain vs Forbes Incorporated (2007) ILR 8 Delhi 9, the Delhi High Court held that while celebrities have the right to re-post their picture, they cannot infringe the rights of the photographer.
Whenever a case is filed over copyright issues in a photograph, Indian law upholding the copyright law, has granted protection to the owner of the photographs. The issue arises when the personality rights of celebrities intrude upon the right of publication by a photographer. While the fundamental right guarantees protection of one's personality from being exploited, the same constitution also provides for the freedom of speech and expression, which allows a photographer to publish and monetize his work. Therefore, the rules of interpretation warrant a balancing exercise.
The legal development around personality rights vis-a-vis copyright is in a nascent stage. With more and more cases and disputes involving this subject matter, the mist around this discussion would be clearer. All be it, there is a huge scope of negotiation and alternative dispute resolution in order to reach an amicable solution in such cases. It would be exciting to see whether the judicial interpretation turns out to be in favor of celebrities or paparazzi.
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