Query:
"Now
lot of tools available to convert a Photograph into Line Art or some other
Image. If one use a Line Art picture, which was derived from a Photograph,
which is not owned by the user, the copy right is with some one else. I want a
clarification that, Can we publish a Line art drawing similar to a
non-copyright photograph. "
Opinion:
The technology is a double
edge sword. It can be used for both constructive and destructive purposes. It
can be used to facilitate a genuine and legal work and on the other hand it
can be exploited for the purposes of commission of wrongs and offences. The
technological progress has facilitated the creation of copyrighted material
much easier and more creative. Similarly, the technological progress has made
copying of copyright material easy and simple.
The test for determining
whether a given use of technology is a fair use of it or a means of commission
of the infringement of the copyright is a pure question of fact which depends
upon the facts and circumstances of each case. The following tests are useful,
though not conclusive, for deciding whether the concerned “act or omission” is
a violation of the copyright of another or not:
(1)
What are protected are not original thoughts or information, but the
original expression of thought or information in some concrete form,
(2)
Where the same idea is being developed in a different manner, it is
manifest that the source being common, similarities are bound to occur. But if
the defendants work is nothing but a literal imitation of the copyrighted work
with some variations here and there, it would amount to violation of
copyright. This is a sure and safe test to determine the violation of
copyright,
(3)
Where the theme is same but is presented and treated differently so
that the subsequent work becomes a completely new work, no question of
violation of copyright arises,
(4)
As a violation of copyright amounts to an act of piracy it must be
proved by clear and cogent evidence after applying the various tests,
(5)
Copyright subsists only in an original literary work. But it is not
necessary that the work should be the expression of the original or inventive
thought. The essential requirement is that the work must not be copied from
another work but must originate from the author, and
(6)
In a case where the first party himself is shown to have adopted or
imitated a copyright of a third party, then courts can resolutely decline to
step in aid of the party alleging the violation of his copyright because
honesty of action is the crux of the matter and court’s protection is extended
only on the principle that damage to a party who has acquired goodwill or
reputation should not be allowed to be affected by the dishonest user of the
same by another.
Copyright
violation or not of a line art drawing:
(1)
No Copyright violation: A photograph of an existing
photograph is not entitled to copyright protection because it is a mere copy.
Thus, the person claiming a copyright in a line art drawing, which is nothing
but a literal imitation of the original photograph, cannot claim any copyright
in it. This is true even if the person claiming a copyright in line art
drawing has done certain “workshop improvements” or “cosmetic changes” in the
original work In such a situation the “Sixth test” as mention above
squarely applies to the given situation, and the person wishing to publish the
same can do so considering it as a literary work in which no copyright
subsists in the eyes of law.
