The safeguarding of one’s intellectual endeavour in artistic creation has always been paramount. Intellectual Property (IP) serves as the support system for artists, providing a legal arm for their inventive expressions. IP encapsulates a spectrum of exclusive rights, shielding the outcomes of an individual’s intellect from unauthorised use. For artists in India, understanding IP is instrumental in preserving the integrity and value of their creative works.

Intellectual Property offers artists a framework to assert control over their creations, be it a painting, a musical composition, or an innovative design. By granting exclusive rights, IP ensures that artists receive due credit, protection against replication, and the potential for commercial exploitation.

Copyright and Industrial Design Rights are two forms of IP that artists need to be aware of. Copyright extends to literary, artistic, and musical works, safeguarding the expression of ideas rather than the ideas themselves. Concurrently, Industrial Design Rights extend to non-functional elements, providing exclusive rights over ornamental designs of utilitarian items.

Copyright stands as a legal framework shielding the tangible expressions of creativity. In the Indian context, this means the protection of paintings, sculptures, photographs, music compositions, and even architectural designs.

At the heart of India’s copyright framework lies the Copyright Act of 1957, a legal defence system that stands to protect the rights of creators. This work of legislation has witnessed subsequent amendments, adapting to the nuanced dynamics of the creative landscape. The Act serves as a comprehensive guide, outlining the contours of protection, ownership, and permissible usage. Notably, the Act dispels the misconception of mandatory copyright registration; the mere creation of a work, provided it is original and in tangible form, automatically grants copyright to the creator. This fundamental tenet empowers artists to assert their rights without the imperative of formal registration. Works are original when they are independently created by a human author and have a minimal degree of creativity. The initial owner of the copyright is the person who does the creative work ie. the author.  

Understanding the temporal dimensions of copyright is pivotal for artists navigating the realm of legal protection. In India, the duration of copyright protection extends for the lifetime of the author and an additional 60 years post his demise. While this substantial temporal coverage inherently grants long-term security, it’s essential to recognise the nuanced role of registration. Unlike some intellectual property domains, copyright registration is not obligatory in India. The act of creation itself, provided it’s tangible and original, bestows automatic copyright upon the artist. However, voluntary registration serves as a potent tool, fortifying the evidentiary foundation in legal disputes.

In copyright disputes, the R.G. Anand case2 clarified that ideas aren’t copyrightable; it’s the expression that matters. The case emphasised substantial similarity and the viewer’s impression in determining infringement.

R.G. Anand’s principles endure in recent cases. The SVF v. Vipul Amrutlal Shah (2009)3 highlighted substantial similarity’s role, and MRF v. Metro Tyres (2017)4 strengthened criteria. Additionally, the Vinay Vats Case (2019)5 added timing significance in complaints, ensuring a fair assessment. The test remains pivotal, influencing subsequent rulings. Its enduring legacy provides a comprehensive framework for assessing copyright infringements in cinematographic works.

When an artistic work is created, deciding if it is a reproduction involves a Court’s factual assessment. In cases like Associated Electronics and Electrical Industries P Ltd. v. Sharp Tools6, Kalapatti, a key test emerges. The Court examines whether an ordinary reader or viewer, after experiencing both works, unmistakably sees the second as a copy of the first. This visual test prioritises the observer’s perception, focusing on non-experts in the subject matter. 

Here is what the Court stated: 

“One of the surest tests to determine whether or not there has been a violation of copy right is to see if the reader, spectator, or the viewer after having read or seen both the works would be clearly of the opinion and get an unmistakable impression that the subsequent work appears to be a copy of the first. In other words, dealing with the question of infringement of copyright of the applicant’s work by the respondent’s work, the court is to test on the visual appearance of the object and drawing, design, or artistic work in question and by applying the test viz., ‘lay observer test’ whether to persons who are not experts in relation to objects of that description, the object appears to be a reproduction. If to the ‘lay observer’, it would not appear to be reproduction, there is no infringement of the artistic copyright in the work.”

Industrial Design Rights & Benefits in India

Industrial design rights form an indispensable shield for non-functional features, where aesthetics and innovation intertwine. 

Designs Act of 20007:

The Designs Act of 2000 stands at the legislative core of safeguarding creative endeavours in the industrial sphere. This pivotal statute confers exclusive rights to creators over the ornamental aspects of functionally significant items. By providing a robust legal framework, this Act extends its protection for artists, ensuring that their non-utilitarian innovations remain shielded from unauthorised replication. There are the  requirements which are needed to be fulfilled in order to get registration of a Design:-

  • A design should be Original. This means that it should not have been used or published previously in any country before the date of application of registration.
  • A design should be distinguishable from known designs or a combination of known designs
  • A design should not be a mere mechanical contrivance
  • A design should be applied to an article and should appeal to the eye
  • A design should not be contrary to public order or morality

Distinguishing industrial design rights from copyright is elemental. While copyright guards a broader spectrum of artistic works, industrial design rights focus specifically on the ornamental features of functional items. This demarcation clarifies the protective ambit, offering artists nuanced avenues for safeguarding their creative ingenuity. Understanding these distinctions is important as artists navigate the intricate landscape of intellectual property rights, strategically employing both copyright and industrial design rights to establish and defend their artistic legacy.

Exclusive rights:

Industrial design rights bestow creators with an invaluable shield of exclusivity. This means that the originator of a novel ornamental design for a functional item holds the sole authority to reproduce, distribute, and authorise others to replicate their creation. This exclusivity empowers creators to safeguard the distinctiveness of their designs, fostering an environment where innovation is not only celebrated but also protected.

Duration and extendability:

The temporal fortification provided by industrial design rights is noteworthy. Lasting for ten years from registration, with the potential for a five-year extension, creators can secure an impressive fifteen years of protection for their copdesigns. This prolonged shield ensures that the fruits of creative labour remain shielded from unauthorised reproduction, offering a substantial timeframe for creators to capitalise on their unique contributions to the design landscape.

Navigating the terrain of intellectual property, artists often grapple with a pivotal choice between copyright and design rights. The potential for confusion lies in the nuanced similarities between protected works, leading creators to question which avenue aligns best with their artistic endeavours.

Discerning between copyright and design rights is essential for artists seeking comprehensive protection. While copyright extends its embrace over a myriad of artistic creations, design rights specifically safeguard the visual facets of functional items. This overlap is evident in the applied arts field where the both the Copyright Law as well as the Designs Law apply. Understanding these distinctions equips artists to strategically fortify their creations, ensuring a holistic defence against unauthorised reproduction and preserving the sanctity of their artistic expressions.

The respective Laws in India protecting designs and copyright, i.e., the Designs Act, 2000 and the Copyright Act, 1957 does try to lay down a distinction between the works protectable thereunder and the rights granted under the two Acts.

Section 2(d) of the Designs Act precludes any artistic work as defined in clause (c) of Section 2 of the Copyright Act from the ambit of a definition of a design which can be registered under the Designs Act. Further, Section 15(1) of the Copyright Act provides that no copyright shall subsist in any design which has been registered under the Designs Act. As regards those designs which have not been registered under the Designs Act, sub-section (2) of Section 15] of the Copyright Act states that the copyright in such designs shall cease to exist as soon as the article to which the design has been applied has been reproduced more than 50 times by an industrial process by the owner of the copyright. Therefore, by virtue of not having registered the design under the Designs Act and having applied the design to more than 50 pieces of article, the owner of such a design shall be bereft of any rights under either of the two Acts.

The Delhi High Court’s in the case of Microfibres Inc vs. Girdhar& Co & Anr brought some clarity over the original artistic works protectable under the Copyright Act and the designs registrable under the Designs Act. The facts of the case is that Plaintiff who was manufacturing of upholstery, initiated a suit against the Defendants for copyright infringement of the artistic works in the upholstery. The Defendants on the other hand, took the defence of Section 15(2) of the Copyright Act. The Division Bench rejected  Plaintiff’s claim of copyright infringement held as follows:- ” … a famous painting will continue to enjoy the protection available to an artistic work under the Copyright Act. A design created from such a painting for the purpose of industrial application on an article so as to produce an article which has features of shape, or configuration or pattern or ornament or composition of lines or colours and which appeals to the eye would also be entitled design protection in terms of the provisions of the Designs Act. Therefore, if the design is registered under the Designs Act, the Design would lose its copyright protection under the Copyright Act but not the original painting. If it is a design registrable under the Designs Act but has not so been registered, the Design would continue to enjoy copyright protection under the Act so long as the threshold limit of its application on an article by an industrial process for more than 50 times is reached. But once that limit is crossed, it would lose its copyright protection under the Copyright Act. This interpretation, in our view, would harmonize the Copyright and the Designs Act in accordance with the legislative intent.”

Protecting Artistic Works in India 

Recommended practices:

Ensuring the safeguarding of artistic works demands a proactive approach. Artists can enhance protection by incorporating the copyright symbol (©) on their creations, signalling their intent to protect intellectual property. Additionally, artists are encouraged to consider copyright registration, providing a robust legal foundation for their works. This step, though optional, offers a tangible advantage, especially if legal action becomes necessary.

Legal action:

In the unfortunate event of infringement, swift legal action is pivotal. Artists possess the right to take legal recourse against unauthorised use of their works. Legal proceedings not only offer potential monetary compensation but also act as a deterrent against future infringements. Timely and decisive legal action can uphold the integrity of an artist’s creations and reinforce the value of intellectual property.

As creators continue to shape the cultural landscape with their ingenuity, a dual approach leveraging both copyright and design rights provides a comprehensive shield. Artists are encouraged to embrace the protective avenues offered by these legal frameworks, ensuring that their artistic legacy remains not only cherished but legally fortified.

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Sumeet Basu

Trademark Attorney

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