India: Delhi High Court on the Copyright on Photographs uploaded on Facebook

Source: www.delhihighcourt.nic.in

In a recent order, in the case of Fairmount Hotels Pvt. Ltd. vs. Bhupender Singh[1], the Hon’ble Delhi High Court has recognized copyright on photos uploaded on Facebook. The Hon’ble Court while adjudicating the dispute over copyright on the photographs of the Plaintiff’s hotel, decided in favor of the Plaintiff as the Defendant did not raise any objection against the contended rights of the Plaintiff over the photographs.

FACTS

The conflict arose in 2015 when the Fairmount Hotels Pvt. Ltd. (hereinafter also referred as “Plaintiff”) came across a Facebook page of Mr. Bhupender Singh (hereinafter also referred as “Defendant”) which displayed the pictures of the Plaintiff. Thereafter a suit for infringement of copyright of the Plaintiff on the photographs used by the Defendant was filed before the Hon’ble Delhi High Court. The Plaintiff claimed the act of the Defendant as fraud and use of unfair means to attract the innocent people in disguise of the Plaintiff. The Defendant was an ex-employee of the Plaintiff and after serving the Plaintiff for about 4 years, opened a hotel of his own in Manali by the name of Mountain Inn, and in order to promote his hotel posted the photographs of the Plaintiffs hotel on his Facebook page.[2]

SUBMISSIONS

In the original suit filed in 2015, CS (OS) 2574 of 2015, the Plaintiff made a move for ex parte interim order and in CS(COMM) 111 of 2018, the Plaintiff sought permanent restraint on the Defendant, to use the photographs of the Plaintiff’s hotel.

The Plaintiff submitted:

1. That they are a better-known hotel in Shimla and have substantial goodwill in the Shimla region.
2. That they managed their business and were known in the public through their website www.fairmountindia.com, which showcased several photographs of their hotel.
3. That the Plaintiff has exclusive copyright on the name as well as on the website and further submitted that the trademark registration application by the Plaintiff is pending since 2006.
4. That the act of the Defendant to showcase the photographs of Plaintiff on the facebook page of Defendant, is to mislead the innocent persons to believe that the Plaintiff’s hotel is same as that of the Defendant and further argued that the Defendant intends to exploit the goodwill of the Plaintiff to promote the business of the Defendant.

In view thereof, the Plaintiff in the original suit, sought an ex parte injunction against further misuse of the Plaintiff’s copyrighted photographs on the Defendant’s facebook page. Further, the Plaintiff submitted, as evidence, photographs of the hotel and the photograph used by the defendant on his facebook page.

Evidence - Photographs

 

The Defendant submitted:

1. That pursuant to the ex-parte ad interim order dated August 28, 2015, the Defendant had removed all the Plaintiff’s photographs from its Facebook page.
2. An undertaking that the Plaintiff’s photographs shall not be re-posted on the Defendant’s Facebook page.

COURT OBSERVATION

For Ex-parte ad interim injunction dated August 28, 2015 by Hon’ble Justice Najmi Waziri

The Court observed that the Plaintiff was able to establish prima facie case for ex-parte ad interim injunction and further observed that the Plaintiff’s rights and interest would be irreparably prejudiced, if such interim order is not passed also considering that the balance of convenience also falls in favor of the Plaintiff. Therefore, the Defendant was restrained from using the Plaintiff’s photographs on his Facebook page at the interim stage.

Final Order dated April 05, 2018 by Hon’ble Justice Manmohan

On the suit for permanent injunction for restraining the Defendant from using the photograph of the Plaintiff’s hotel on his Facebook page claiming copyright on the said photographs, the Hon’ble court accepted the submissions/ undertaking by the Defendant and on a request of cost by Plaintiff and after considering the financial condition of the Defendant, directed the defendant to pay a cost of INR 50,000 to Plaintiff.

Analysis

In the original suit, the Plaintiff argued exclusive copyright over their website and contents thereto, however, the Court did not comment on the copyright-ability of a website.

The Copyright Office, as per the information available on the website and vide orders passed by Learned Registrar of Copyright, is of the opinion that a website as a whole is not subject to copyright protection, however, some component of the website which fall within the ambit of literary, artistic, sound recording and cinematograph films under the Copyright Act, 1957 are protectable under such independent categories vide separate application filed in this regards.[3] It is further noted that the website contains various non-copyrightable content particular to websites may include but are not limited to ideas or future plans of websites, functional elements of websites, unclaimable material, layout and format or ‘look and feel’ of a website or its webpage; or other common, unoriginal material such as names, icons or familiar symbols.[4]

The debated question in such a situation is “Should “look and feel” of a website be covered as copyright-able subject matter?”

The “Look and Feel” of a website is the creativity of the website holder that ensures unique components of the website so as to be attractive and user friendly. The look and feel of a website is not a fixed feature but variable as per the requirement of the website holder. This variable feature can be modified and incorporated in the website in order to be associated completely with a specific proprietor/ brand or associated with particular website.

In Internet era, a website is essential to distribute information, to attract public attention and to act as a platform between the website holder and its customer/clients. In such a situation, the ‘look and feel’ of the website makes the first impression to the customer, and therefore, the efforts taken by the website holder to create unique ‘look and feel’ is ideally creativity and therefore copyright-able subject matter. It is important to note that with time the companies are making major investments on web portal for communication with the public, and this communication includes various trademark, product information, fonts and design of contents, effects and animation using the brand/ trademark etc.

With the launch of new products / services of a company, the website is the first platform updated for public access. This motivates the company to emphasize more on the overall features of the website which may attract more attention and publicity. Even major brands are using their trademark as background image for the website, using the color combination of the trademark (if any) and/or using a specific animation/ combination of color and font etc. With the focus of companies on attracting more public attention on their website, the ‘look and feel’ is ought to gain consideration to determine association with a brand. In such circumstances, it is a fair opinion to consider ‘look and feel’ of the website as copyright-able.

As software works are protected separately under the software category, similarly a provision for protecting the look and feel of the website can be considered under a separate category for website. Considering the competition between the rival companies, the website is the most effective medium to promote the business and goodwill of a company. The Copyright Office has also considered the copyright-ability of an APP under software category subject to submission of source and object code as provided under Rule 70 (5) of the Copyright Rules 2013. It is important to note that the registration of an APP covers any screen displays generated by that program, provided that the computer program (code) generating the screen display is submitted by the applicant. Therefore, if registration of APP through it source code and object code, is eligible to protect the screen display which basically is the ‘look and feel’ of the APP, then even the programming and coding causing the ‘look and feel’ of the website must be considered as copyright-able subject matter.

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[1] CS(COMM) 111 of 2018

[2] Apoorva Mandhani, Delhi HC Recognizes Copyright On Photos Uploaded On Facebook, available on http://www.livelaw.in/delhi-hc-recognizes-copyright-photos-uploaded-facebook-read-order/ (last visited April 20, 2018).

[3] Frequently Asked Questions, How can I get copyright registration for my Web-site?, available at http://copyright.gov.in/frmFAQ.aspx (last visited April 20, 2018).

[4] Some of the order passed by the learned Registrar of Copyright in this regards are In the matter regarding registration of Copyright Application titled “Moviez Corner” (Dy. No. 4899/2015-CO/L);In the matter regarding registration of Copyright Application titled “Unfold Website Design” (Dy. No. 3381/2016-CO/L); In the matter regarding registration of Copyright Application titled “K Class, Class 6 – Book 3- Geography & K Class, Class 4 – Book 1- English” (Dy. No. 3949 & 3944/2016-CO/L); In the matter regarding registration of Copyright Application titled “K Class, LKG; K Class Class 1; & K Class, Class 6 – Book 5 Maths” (Dy. No. 2228, 2229 & 3943/2016-CO/L); In the matter regarding registration of Copyright Application titled “HAMSTECH ONLINE CONTENT” (Dy. No. 5738/2017-CO/L).