Copyright in product photos: who actually owns them

Section 17 does not say what most founders think

Section 17 of the Copyright Act, 1957 opens with the rule everyone half-remembers: the author of a work shall be the first owner of the copyright therein. Section 2(d)(iv) makes the author of a photograph the person taking it, and section 2(c)(i) makes a photograph an artistic work regardless of artistic quality.

Then come the provisos. Proviso (b) decides most brand shoots: subject to the provisions of clause (a), in the case of a photograph taken, or a painting or portrait drawn, or an engraving or a cinematograph film made, for valuable consideration at the instance of any person, such person shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein. Later amendments left that clause untouched.

For a commissioned photograph the default runs the other way. Two conditions must hold: the shot was taken at your instance, and for valuable consideration. If both hold and the contract is silent, you are the first owner. Section 57 still leaves the right to claim authorship with the author.

Three ways you hire, three different answers

• Salaried in-house photographer. You are first owner. Shots taken at your instance for consideration sit inside proviso (b); anything else sits inside proviso (c), which gives the employer work made in the course of employment under a contract of service.
• Freelance photographer on invoice. Proviso (c) does not apply, because a contract for service is not a contract of service. Proviso (b) does, so on a silent contract you are still first owner. This is where the common advice is wrong.
• Agency. Same test, applied to who commissioned and paid. If the agency engaged and paid the photographer, first ownership sits with the agency and you need an assignment from it.

The limits of proviso (b) are sharp: it lists only a photograph, a painting or portrait, an engraving and a cinematograph film. Listing bullets and ad copy from a freelance writer stay with the writer. A commissioned illustration, icon set or logo stays with the designer. Every proviso also ends with “in the absence of any agreement to the contrary”, and a good photographer’s terms say exactly that.

What section 19 requires of an assignment

Section 19(1) is absolute: no assignment is valid unless it is in writing signed by the assignor or a duly authorised agent. An oral deal and a paid invoice are not assignments.

Section 19(2) requires it to identify the work and specify the rights assigned, the duration and the territorial extent. The Act then fills gaps badly. Under section 19(5) an unstated period is deemed five years. Under section 19(6) an unspecified territory is presumed to extend within India, a problem the day you list in the GCC. Under section 19(4) rights not exercised within one year are deemed lapsed unless the document says so. Four lines fix it: identify the shoot, assign all rights in all media, say perpetual, say worldwide. An assignment is not a licence, and licensing is the ground creator usage rights covers.

A release is not a copyright document

Model and property releases are a separate question. The Act allocates rights in the work; it says nothing about the consent of the person in the frame, or the owner of the car or artwork behind them. A release rests on personality and publicity rights and on privacy, judge-made in India rather than codified, and on the Digital Personal Data Protection Act, 2023 where the image is personal data. Sections 38A and 38B add performers’ rights on video, a third question again. You can own the copyright in a photograph you have no right to publish.

What is copyrightable in a listing, and what is not

• The photograph: yes. Section 13(1)(a) protects original artistic works, and the “whether or not any such work possesses artistic quality” wording keeps the bar low, though not at zero. Product image guidelines decide whether the shot sells; section 13 decides whether it is yours.
• Bullet copy: possibly, as an original literary work. From Eastern Book Company v. D.B. Modak, Supreme Court of India, 12 December 2007: the author must “produce the material with exercise of his skill and judgment”, “trivial variation or inputs” fail, and what is needed is a “flavour of minimum amount of creativity”.
• A bare specification table: probably not. A table sits within the literary work definition in section 2(o), but on the Modak standard a table recording measured facts in the obvious order is trivial. Arrangement showing real skill and judgment can qualify; the figures never do.
• Facts and the product name: not copyright at all. Section 13(1) lists the classes of work in which copyright subsists and section 16 bars copyright otherwise than under the Act. A name is not one of them, which is why brand naming is a trade mark exercise.

The remedy path, and the three claims people confuse

Section 55(1) entitles the owner of an infringed copyright to injunction, damages and accounts. One proviso is worth planning around: if the defendant proves he was unaware and had no reasonable ground to believe copyright subsisted, you get only an injunction and a decree for his profits. Section 62(2) includes the district court where you reside or carry on business, so you can sue at home. Section 63 makes knowing infringement an offence carrying imprisonment of six months to three years and a fine of fifty thousand to two lakh rupees. Registration under section 45 is optional, but for an artistic work used in relation to goods or services the application must carry a Trade Marks Registry certificate.

Three claims get confused here. A copyright claim asserts that you own the expression, and needs no registration and no confusion. A trade mark claim asserts origin and turns on confusion. A marketplace policy complaint asserts nothing legal; it is a request under the platform’s own rules, it moves fastest, and it decides nothing. Which evidence goes where is the counterfeit takedown evidence pack question. Who owns the asset is this one.

Term, after the 2012 amendment

Section 25 gave photographs a separate term of fifty years from publication. It was omitted by the Copyright (Amendment) Act, 2012 with effect from 21 June 2012, and the same amendment removed the words “other than a photograph” from section 22. A photograph now takes the section 22 term: sixty years from the beginning of the calendar year following the author’s death. The clock runs on the photographer’s life even where your brand is the first owner.