The concept of contemporary art or modern art poses a challenging problem for intellectual property lately. Intellectual property aims to protect one’s human minds creativity. It aids in protecting one’s creations, livelihood and finance without any exploitation. Such rights of intellectual property like patents, copyrights, trademarks play an essential role nowadays due to the modernization of technology and resources and that it has become a cakewalk for people to steal the credits of the deserving by few manipulations. Such a branch of rights is very crucial for the artists. Such recognition by their work and arts gives them a livelihood and recognition from unauthorized utilization. It ensures people get enough recognition for their creativity and talent in terms of respect, remuneration and further opportunities.
But such a branch of rights can act as foul play in the field of contemporary art. Contemporary art possesses a new challenge as it is based on the development and re-utilization of the existing artworks. One needs to re-interpret the existing works. It just implies pooling the pre-existing creativity. In such situations, substantial similarity can be used. This test requires the examination of the degree of borrowing of the artworks from the original artists. If in such cases of borrowing and producing substantially similar work, then the rights of the contemporary artists get restricted. For this, a viable solution needs to be proposed.
Under the Copyright, Designs and Patents Act, 1988, Section 4 (1), states that the graphic works, sculptures, photographs and collages are taken into account as artistic works irrespective of their artistic quality. It indicates that the judges cannot apply a value for judgment while deciding whether something is ‘art’. In the case of digital arts for the contemporary art scene, there exists no legal recognition unless they are considered as a part of the sculpture category. However, for creating art from previous work, there are two possibilities for creation. One is through destruction and alteration.
The recent well-known controversy of the ‘Genda Phool’ song by Badshah has been accused of copyright as this song has been sung by remodelling an age-old song. And another famous case of a super hit song ‘Saranga Dariya’ in the Tollywood industry can be listed in the same vein.
Recently in 2020, an order has been passed by the Danish Maritime and Commercial High Court issuing a rule exploring the fine line between the alteration and destruction of an existing original artwork. The court, therefore, held that the project would indeed constitute an alteration in making the artwork available in a manner or in a context that remains to be prejudicial with the author’s artistic reputation or literary or individuality. This all would be violative of Section 3(2) of the Danish Copyright Act.
The Indian courts have taken into account the same ruling of the destruction and distortion of the copyrighted work of the Danish Court. In the year 2019, the case of Jatin Das v. Union of India has been decided in the High Court of Delhi, which has restrained the defendant-Steel Authority of India (SAIL) while restricting the moral rights of the artist. The plaintiff-Das has alleged infringement of the special rights namely ‘moral rights.’
Another case- Amar Nath Sehgal v. Union of India has been decided in the year 2005 to decide about the important sculpture described as an ‘Indian national treasure’. It has been damaged and mutilated by negligent mishandling of the artwork. After researching for two years, the court has finally pronounced the destruction of the artwork. They held that such destruction of artwork can affect the moral rights of an artist with integrity. As such existence and integrity of the body of the artist act as the very foundation of his/her reputation and livelihood in society.
Therefore, upon by Danish copyright law, the artists and authors have limited the moral rights to cases where the original work has been modified or made available to the public in a way that remains prejudicial to the author’s literary or artistic individuality or reputation.
In another case of Raj Rewal vs Union of India, the court has rejected the claim of an author’s moral rights by taking over the precedence of the building’s owner by destroying or altering the building. Therefore, the court while pronouncing the rejection of the artist’s prayer for an injunction, it held that preventing the destruction of the building, leads to the amount of restriction of a property owner’s right to deal the property and land of his with full liberty without any restrictions.
The Court held that the creator’s entitlement to forestall ‘bending, mutilation or alteration of its work under Section 57 didn’t allow a creator to forestall the decimation of work completely, since “what can’t be seen, seen, heard or felt, can’t be defective and can’t influence the honour or notoriety of the creator.” The Court took the view that a planner’s privileges are confined to keep the structure proprietor from making changes to the structure and broadcasting that the designer is the creator of the adjusted structure.
It is relevant and essential to specify here that the instance of Raj Rewal can’t be perused under the cases talks about hereinabove as the topic for this situation was a work of engineering which is at an unexpected balance in comparison to a show-stopper. The assurance conceded to real structures is lesser than compositional designs for the structure under the Indian copyright law.
Perusing the three cases examined above, it is obvious that Indian courts appear to be isolated as they would like to think on perhaps the most dubious subjects concerning copyright law, ‘Does finish annihilation of a bit of craftsmanship adds up to the encroachment of a craftsman’s ethical rights? Even though in Amar Nath Sehgal, the Delhi High Court responded to this inquiry with a reverberating ‘yes’, the position taken in Raj Rewal is by all accounts a total difference to the setup standards of law maintained by the courts throughout the previous 20 years.
As of now, the Indian law on moral rights is consoling for craftsmen since courts have generally ensured the ethical privileges of specialists and can likewise grant harms after preliminary in cases with realities like these, where the work has just been considerably changed.
Author(s) Name: Naga Sumalika (Student, Symbiosis Law School, Pune)