Copyright

Of Posters, Photographs and Poses!


PK copied

Aamir Khan’s upcoming film PK has already become the talk of the town; the actor who was in the news recently for posing nude in one of the posters for the film caught my attention (no pun intended) for a very different reason. It turns out that the poster for PK has been copied from an earlier poster released in 1973 by a Portuguese musician for his music album. In this post, I shall explore the issue of copyrightability of posters.

Are posters copyrightable?

If we were to classify posters as works qualifying for copyright protection, we would invariably classify them as “artistic works”. According to Section 13 (1) (a) of the Copyright Act, 1957, an artistic work to enjoy copyright protection must be “original”.

It is easy to conclude that posters being artistic works should be entitled to copyright protection, the only requirement being that the poster must be “original”. One might argue that Rajkumar Hirani, the director of PK, is guilty of copyright infringement…but is the issue really that simple?

In order to answer that question, we need to explore what exactly qualifies as “original” work under the 1957 Act. ‘Originality’ as understood in the context of copyright law means that there is expenditure of original skill or labour in execution of the work and not originality of thought.

Hand-drawn/Graphically designed posters:-

 Consider the example of an inter-school competition on the theme of environment which requires participants to draw posters to raise environmental awareness. Here, the posters would most likely comprise drawing(s) which in some way would depict environmental degradation; although the idea that all the posters would essentially convey is the same (i.e. ‘save the environment’), the expression of that idea would be different for every participant and therefore, every poster would be an “original artistic work” in itself. This means that if tomorrow someone were to copy one of the posters, it would amount to copyright infringement.

Photo posters:-

The PK poster and the one that it purportedly copied from are different from hand-drawn posters in this that they are photo posters which means that they are basically photographs used in posters. It has long been established that photographers own copyright over the photos that they take. If Quim Barreiros (the Portuguese musician) or his photographer were to bring a copyright claim against PK, they might do so on the ground that PK violated the copyright in photograph because there can be little doubt that the two posters are almost identical. A line of argument that PK might employ is that they only copied the “pose” without actually using Barreiros’ photograph and therefore, there was no copyright infringement on the part of PK. This leads us to another issue “Are camera poses copyrightable?”

Are camera poses copyrightable?

I think that the answer to this question lies in whether we view a camera pose as an idea or an expression of an idea. This is because copyright law protects the expression of an idea and not the idea itself (also known as ‘idea-expression dichotomy’).

By now, we have all heard of the famous Oscar selfie taken by Ellen DeGeneres; it went on to become the world’s most-popular selfie and was valued at $1 Billion.

Ellen Degeneres' famous Oscar selfie

Ellen Degeneres’ famous Oscar selfie

Ever since Ellen DeGeneres released this selfie on Twitter, we had numerous people (including myself) emulate her as they shared their own group selfies on social media sites. Now the question that arises is that given the value of Ellen DeGeneres’ selfie, can she injunct others from sharing their Oscar-style selfies online?

I think not. This is because “selfies” existed long before the Oscar selfie became popular and one would not attribute the popularity of selfies to Ellen DeGeneres’ selfie. Selfie in this case would most likely qualify as an idea for a photograph and not the expression itself.

The Bollywood film ‘Ramleela’ which released last year was inspired by Shakespeare’s Romeo and Juliet. It turns out that one of the posters for the films was also the result of “inspiration”.

The poster of the film 'Ramleela'

The poster of the film ‘Ramleela’

This poster immediately brought to my mind the poster of the classic film ‘Gone with the Wind’.

Film poster of 'Gone with the Wind'

Film poster of ‘Gone with the Wind’

The resemblance between the two film posters is uncanny. Now the question that arises is that in case of a film poster, would the “camera pose” amount to an idea or an expression.

Ramleela and Gone with the Wind are films belonging to the genre of romance. If we are to “analyse” the poses in the posters, we would not conclude anything substantial other than this that the films are love stories and in my opinion, the particular pose here amounts to expression and not idea. The idea here is the theme of the film (i.e. that it is a love story) and the poster amounts to expression of that idea.

Interestingly, I discovered another poster of Ramleela that has been copied.

'Ramleela' poster copied from 'Revenge'

‘Ramleela’ poster copied from ‘Revenge’

Ideas (such as themes) can be freely copied. When applying the idea expression dichotomy test, one needs to determine whether the expression has been copied. For example, two directors may make movies based on the Kargil War (Kargil war is the theme or the idea) but the movies made cannot be same. This is because the cinematographic work would amount to expression of the idea.

Those guilty of copying posters might argue that posters are advertisements and advertisements are not entitled to copyright protection. However, in Bleistein v. Donaldson Lithographing Company, the United States Supreme Court held that advertisements are protected by copyright.

I am yet to hear of any film director being sued because of blatant copying of film posters; it would be interesting to see how such a case plays out in future.

(To see more Hollywood-inspired posters, click here.)

Devika Agarwal

Devika Agarwal

Devika is a Policy Analyst at Nasscom. She first started writing on Spicy IP in 2013 when she was awarded the Spicy IP Fellowship, which sparked her passion for writing on IP. Devika is interested in copyright and technology law.

4 comments.

  1. AvatarJagdish Sagar

    Interesting. Some comments: (i) A photograph is a form of artistic work. If the structure, form, arrangement of objects in a photograph is so similar to those in an earlier photograph as to make copying the most likely explanation, then the second infringes the first. (ii) The same obviously applies to film posters. (iii) In the case of a film, the situation is more complex. In our Act a film is a “work of visual recording” i.e. something more than a visual recording yet distinguishable from the component or underlying literary, dramatic, musical and artistic works; what is called the cinematography, if copied, would possibly infringe the film; other copying would be of the underlying work. (Note the distinction between a film and a sound recording in this connection–the latter is merely a recording of sounds.)

    Reply
  2. Devika AgarwalDevika Agarwal Post author

    Thank you Sir. Your comments are always very insightful. Another point that I did not discuss but I got to know of only later is the application of the ‘scenes a faire’ doctrine. In the case of PK, the application of the doctrine would make the case stronger for the Portuguese singer.

    Reply
  3. AvatarJagdish Sagar

    Good, relevant point. However, personally I’m not sure the ‘scenes a faire” applies in this case: it applies normally to films in the same genre; though what you suggest is possibly the line a defence counsel would have to take, for what it is worth, in this case.

    Reply

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