Every one of us, at some point or the other has posted our pictures on social networking sites. Sometimes they are clicked by us, sometimes by friends and sometimes by strangers, but can we legally post all those pictures without infringing someone’s copyright?

Generally speaking, a problem like this seems to be too far-fetched and does not bother common individuals like us, but when it comes to celebrities the stakes are much higher.

The ‘JLo’ Incident

Popular Hollywood celebrity Jennifer Lynn Lopez (JLo) has been recently sued for alleged copyright infringement by Splash News and Picture Agency which is a photography agency. The incident dates back to 2017 when JLo posted a photograph of herself with her fiancé Alex Rodriguez on her Instagram account.

However, she is not the first to land in trouble, other Hollywood celebrities such as Gigi Hadid when she posted a photograph of herself standing on a street smiling in a denim outfit on Instagram, Khloe Kardarshian when she posted a photo of herself arriving with her sister at a Miami restaurant, Ariana Grande & Jessica Simpson are few others  on the list have also landed themselves in similar law suits.

These incidents are relevant for us as they all, by and large, revolve around the same question of law i.e. whether Copyright of a Photographer prevails over the Right to post your own photographs on your social networking account.

To understand the issue, let us first discuss these two concepts in detail.

Right to Publicity

“Right to Publicity” in common parlance refers to “Personality Rights”. These are Rights of an Individual to control the commercial use of his/her name, image, likeness or identity. In most jurisdictions, Personality Rights are generally considered Property Rights and not Personal Rights.

So, when JLo shared her picture with her fiancé on Instagram, it prima facie seems that, she does not need any license, authority to reproduce, publicly display, distribute and/or use the photographs as she possess Personality Rights in that picture. However, situation becomes complex by the presence of a contrasting Right of the Photographer.

Photographer’s Angle

Splash News and Picture Agency, who clicked the photograph on the other side has protection under Copyright law which protects original works of authorship. Therefore, when its Photographer took photographs of celebrities/public figures in a public place to illustrate a newsworthy story, they owned Copyright in the same and can sell the images to media/news agencies and/or distribute the photographs for a fee.

This is exactly what they intended to do in the present case as the photograph in question was creative, distinctive and valuable. Considering the JLo’s celebrity status the they could have earned a lot from the picture, which eventually they were unable to, since JLo shared the picture through her Instagram account, it automatically got circulated to her 102 million followers on Instagram and hence the photography agency is seeking $150000 as damages and an injunction against JLo.

Battlefield

So now there is clear battle between Personality Rights of JLo and Copyright of the Splash News and Picture Agency. Hence in order to check who the winner here is, we need to dig deeper and understand the exceptions of Right to Publicity.

Newsworthiness is the key

Under US Law there is a clear exception to the Right of Publicity with respect to “newsworthiness” and “public interest”, provided in the First Amendment. The First Amendment protection ensures that the public is constitutionally entitled to know about things, people and events that affects them.

Therefore, if in any case there has been any unauthorized use of an Individual's identity in connection with a "news" or "public interest" story, then the First Amendment rights will prevail over the Individual’s Right to Publicity.

Hence an Individual cannot use his/her Right of Publicity to claim a property right in his/her likeness as reflected in photographs that were taken in a public place to illustrate a newsworthy story.

The 4 Possible Situations

In light of the above, we try to answer the legality of posting a photograph on social networking accounts in these of 4 possible situations.

1. When you go to a Photographer for a photo-shoot of yourself.

In this situation, the person approaching the Photographer for a photo-shoot will have the copyright over the photographs as the Photographer has taken pictures as per his/her instructions. Hence you are free to use it post it wherever you want.

2. When you ask someone to click a photograph of yourself in a public place.

In this situation, the person asking to click the photograph owns the copyright over the same as he/she is the person on whose request the photograph was clicked. Hence you are free to use it and post it wherever you want.

3. When someone clicks your photograph with or without your knowledge in a public place.

In this situation, the Photographer will have the copyright over the same as he has clicked the photograph on his own without your request or instruction. Hence you cannot post it without seeking permission from the Photographer.

4. When someone clicks your photograph in a private place.

This is a violation of Right to Privacy and is illegal and hence the Photographer cannot have a copyright, hence you are free to use it and post it wherever you want.

Conclusion

As we knew from the facts that the photograph was taken in a public place and to cover news story, Splash News and Picture Agency clearly has the exclusive right to use of the photograph and posting of photograph by JLo on her Instagram account may attract penalty.

Singapore has recently announced a ban on advertising of sugary drinks and has also introduced warnings which will display the health hazards caused by consuming sugar. The drinks with medium-to-high sugar content will also carry a label to indicate that they are unhealthy, similar to the warnings on products containing tobacco & alcohol. These labels will be colour coded, indicating whether the drink is healthy, neutral or unhealthy which will be determined largely by the sugar content as well as other factors such as the content of the saturated fat. Diabetes is amongst the leading causes of death in Singapore, accounting for nearly 1.3% of deaths according to the Ministry of Health (MOH). This new rule is a part of the government’s ‘War on Diabetes’, since diabetes has become a major health problem in Singapore.

This ‘war’ against diabetes began 2 years ago, when the government urged the soft drink companies to lessen the sugar levels in their products. This initiative was first brought to the limelight during the National Day Rally conducted in 2017. However, the measures did not seem to have drastic positive outcomes which has led to the government to come up with the present proposal.

Until now, we had heard of display of health warnings and ban on advertising for products containing tobacco and alcohol, however, sugar seems to be the new health hazard.

San Francisco & Great Britain have similar laws whereas, countries like Mexico and Brunei, have a sugar tax.

Adidas AG filed an opposition before the Japan Patent Office (JPO) against the mark ‘adidog’ which was applied for on October 17, 2016 and was published recently on August 30, 2019. The opposed mark ‘adidog’ was applied by an individual for pet clothing.

Adidas in its opposition contended that the mark ‘adidog’ and the opponent’s mark ‘adidas’ were confusingly similar with special emphasis on the visual resemblance and the proximity of the goods to which the mark was intended to be applied on: pet clothes.

“Adidas” is coined after the name of the opponent’s founder ‘Adi Dassler’. Thus it is an invented word with no dictionary meaning. Besides, other than opponent mark, the Opposition Board could not find any words starting with ‘adid’ in language dictionaries of English, French, German and Italian or registered trademarks with the prefix ‘adid’ in Japan. It is unquestionable that the mark ‘Adidas’ is a reputed mark in Japan at least since 1971 when the brand commenced its activities in the country. The Opposition Board thus concluded that, keeping in view the close similarity between the marks, the public may misconceive the source to be from an entity systematically or economically connected with Adidas AG and thus cancelled the mark which was found to be in violation of Article 4(1)(xv)* of the Japanese Trademark Law.

*Article 4(1)(xv) prohibits a registration which will or is likely to cause confusion with existing business entities.

Exhaustion of the distribution rights under EU directives:

Copyright laws have recently seen issues arising with respect to 'online exhaustion' and the feasibility of a second-hand market in digital content. Under copyright, the exhaustion principle limits the copyright holder’s exclusive right to distribute/license a protected work. Where the distribution right is ‘exhausted’ following the first (authorized) sale of the work, i.e. the rights-holder can no longer prevent further distribution of that work. The rationale is to strike an appropriate balance between the rights-holder’s interests and the free circulation of goods.

A suit was filed at the Amsterdam District Court by the Dutch Association of Publishers, who prayed for a preliminary injunction to shut down the website www.tomkabinet.nl (Tom Kabinet website) in order to stop the copyright infringement.

The Tom Kabinet website which was launched in 2014, operates as a virtual marketplace where people can buy and sell e-books by uploading it on the site and agreeing to delete their own copies after the sale is completed. The sellers are also asked to verify if their e-book/s was legally purchased. Tom Kabinet then marks the e-books with a digital watermark and the buyers may then download the e-books from the website. The Dutch Association argued that the re-sale of e-books results in copyright infringement since there is no consent obtained from the right holder.

The Court refused to grant an injunction to shut down the website, stating that, “though it is unclear whether or not the internet site infringes copyright when considering the case law of the ECJ, closing down the site immediately would be a step too far.”

The Court of Appeal backed this ruling but stated that Tom Kabinet cannot employ a system that allows for the sale of illegally downloaded e-books. This meant that Tom Kabinet could continue its practice as long as the seller obtained its copy of the e-book legitimately. The Court added that the matter should be dealt with in a separate lawsuit whereby that court could refer questions to the CJEU regarding the applicability of the ‘UsedSoft’ decision to e-books.

What is the UsedSoft decision and how is it relevant?

In 2007, Oracle sued UsedSoft in Germany, requesting a permanent injunction against UsedSoft for selling “used” software licences of Oracle products. In 2012, the Court ruled that the principle of exhaustion applies to only first-time sale of software. Thus, it can be interpreted that used software trade is legal. According to the Court, this also applies to software that has been transmitted online.

The CJEU however in the Tom Kabinet case ruled that, exhaustion of copyright should not apply to the sale of downloaded works, such as e-books, under the current EU law. The court also said that applying the principle of exhaustion in this case would damage the interests of copyright owners. It emphasized that applying the rule of exhaustion in this case could ''contribute to the development of piracy and make it more difficult to implement the measures intended to combat it ''.

You may wonder, what is the issue in re-selling e-books? Well, when an e-book is sold, the author receives royalty, however, authors do not receive royalties on second-hand sales. This is where Tom Kabinet’s website comes into play, wherein he makes money by facilitating the process of re-sale of e-books and earns from such transactions.

On 16th September 2019, the Ministry of Commerce and Industry (Department for Promotion of Industry and Internal Trade) released the draft amendment to the Geographical Indications of Good (Registrations & Protection) Rules, 2002 (“draft amendment Rules”) to ease the GI Registration process in India. The draft amendment Rules also propose to completely waive off the fees to be paid during the GI registration process.

The Key Proposal (Amendment to Rule 56)

First things first, unlike the present scenario where a GI Application has to be mandatorily made by the Registered Proprietor and the Proposed Authorised User jointly, the draft amendment Rules propose that the application can be filed by the Proposed Authorised User, provided he serves a copy of the application with the Registered Proprietor and intimates its due service to the Registrar.

Documents which are NO MORE REQUIRED

In order to ease the process of GI registration, the draft amendment Rules have proposed to remove the requirement of certain documents which are presently necessary.

1. Affidavit along with Statement of Case:

Statement of Case can now be filed without any affidavit.

2. Letter of Consent:

The Proposed Authorised User only needs to forward a copy of the GI application to the Registered Proprietor and intimate the due service of the same to the Registrar. The requirement of furnishing Letter of Consent from the Registered Proprietor of the Geographical Indication under Rule 56(2) has been proposed to be deleted

Complete waiver of Fee:

Another important proposal is to waive off the official fee for filing application for GI Registration (existing fee- INR 500), Issuance of Registration Certificate (existing fee-INR 100) and Renewal Application (existing fee- INR 1000) completely.

Registrar will not have to wait till the expiry of Appeal Period for making entry

The Draft rules also propose an amendment to Rule 59(1) of the Rules and propose that where an opposition has been filed and dismissed, the Registrar can enter the authorized user in Part B of the Register and shall issue a registration certificate with the seal of GI Registry and will not have to wait till the end of appeal period, as is the current requirement.

Going through the draft amendment Rules, we are sure that this can provide a much needed boost to Geographical Indication Ecosystem in India. It simplifies the process and also waives of the fee, encouraging folks to file more GI Applications.

The Department of Promotion of Industry and Internal Trade has amended the Patents Rules, 2003. On September 17, 2019, the Indian Patent Office notified and enforced the Patent (Amendment) Rules, 2019. The amended Rules have streamlined the process for “Expedited Examination” of patent applications for a certain class of applicants. The provision for Expedited Examination which was introduced in the amendment of 2016 has now been expanded to a wider class of entities.

The scope of entities which can apply for Expedited Examination has been increased by including entities/persons (both foreign and Indian applicants) such as start-ups, female applicants, Government departments, institutions established by the government, government companies, or those financed by the Government, etc.

With this amendment, the Rules for the patents filed by small entities, women, foreign applicants and government authorities have been streamlined. They have also contributed in incentivizing Indian patent applicants to file International Patent applications.

The Delhi High Court recently granted an injunction against Rising India Entertainment Production & Ors (“the Defendant”) for use of the words “Miss India” or “Mr. India” with respect to beauty pageants. Bennett, Coleman and Company Limited & Ors. (popularly known as ‘the Times Group’) filed a suit at the Delhi High Court contending that the marks ‘Miss India’ and ‘Mr. India’ were its registered marks in classes 38 and 41.

According to the Times Group, its pageants under the brand names ‘MISS INDIA’ and ‘Mr. INDIA' attained great reputation and goodwill in India and the world since their adoption in 1964. Various Indian cine-stars and A-list models have been outcomes of this pageant. The winners of this pageant have also represented India in international beauty contests.

On 30th June, 2019, the Times Group came across an advertisement of an event/beauty pageant to be organized under the marks “Mr. & Miss India World” through the Defendant’s online promotional activities. Interestingly, the winner of the Plaintiff’s beauty pageant in 2019, Ms. Suman Rao, was displayed as a judge in the Defendant’s contest. However, upon being contacted by the Plaintiff, Rao refused to be associated with the Defendant at all!

The Court, recognizing the association of the Plaintiff with the marks ‘Miss India’ and ‘Mr. India’ has granted a permanent injunction against the Defendant for use of these marks or other such deceptively similar marks.

The Indian Trade Marks Registry released a Public Notice on September 19, 2019. The Registry stated that pending oppositions and rectifications which have amicably been settled between the parties and which are pending final orders from the Registry will be concluded by it at the soonest. The parties that have amicably settled matters as per law are required to inform the concerned officers of the Registry via email along with supporting documents. The Registry will then suitably pass orders pursuant to such settlement. The Notice also stated that the email must mention “Withdrawal/settlement of Opposition/Rectification/Application” in the subject.

By and Large in common usage means “On the whole; generally speaking; all things considered. Something that is true By and Large is something that is more often true than not. It is used when giving a general fact that is usually true despite there being some exceptions. For Example:

If winters are By and Large cold and snowy, the winters are usually cold and snowy but on occasion are warm with no snow.

What's the origin of the phrase 'By and Large'?*

However, not many know that this phrase has a nautical origin. By and Large is a combination of two nautical terms.

'Large'

When the wind is blowing from behind a ship's direction of travel then it is said to be 'Large'.

When the wind is in the 'Large' direction the largest square sails may be set and the ship is able to travel in the downwind direction faster.

‘By’

'By' means 'in the general direction of'. To be 'by the wind' is to face into the wind.

*https://www.phrases.org.uk/meanings/by-and-large.html

Can the Moon ever look flattened?

These images are used for academic purposes only and we do not claim any copyright in the same. Image sourced from

http://spaceref.com/moon/moonset-as-seen-from-the-international-space-station.html

Remember, our last month’s Riddle?

The answer is Path B. We are all aware of the fundamental principle that ‘a straight line is the shortest distance between two points. But the question is, is it the fastest?! In our case, this is path C. However, in this case, the acceleration due to gravity also plays an important role. Since, Path A is the steepest, the acceleration due to gravity is maximum when the Red Ball travels through Path A. However, it is only Path B that gets the best of both worlds! Thus the Red Ball, if it travels through Path B will reach the End at the soonest.