In the digital era, photo manipulation has become increasingly common, raising significant legal concerns for both photographers and models. This article delves into the legal rights of photographers and models regarding their images, exploring the complexities of intellectual property, consent, and usage rights. It also outlines the remedies available when photos are altered without permission, including actions against unauthorized Photoshop and other forms of photo manipulation.
DIYA MEHTA
7/1/2024, 4 min read
Due to digitalization and the rise of the internet, photographs have become ubiquitous in everyday life. Furthermore, social media platforms and photo-sharing apps such as Instagram and Pinterest have made it incredibly easy to share pictures. We are now in a world where images dominate our daily interactions. This raises the question of ownership of these photographs and the legality of posting photos you do not own.
According to WIPO, a “still image is produced on a surface sensitive to light or other radiation, irrespective of the technical nature of the procedure used to perform the image”. The Copyright Act of 1957 defines a photograph as “photograph includes photo-lithograph and any work produced by any process analogous to photography but does not include any part of a cinematograph film”. According to the Act, the person who takes the photograph is considered the author (section 2(d)); therefore, she is accorded protection under section 17. This aligns with the American court’s ruling that states copyright regulations will not apply to an Ape who, after snatching, clicked random pictures, including one of himself. It is, therefore, clear that copyright in a photograph indeed belongs to the person who takes the photograph. These rights vest into him as soon as he clicks the picture. Copyright law protects both the economic and moral rights of the author (photographer). Economic rights include the power to control the use of his work, i.e., reproduction, distribution, communication, and transformation. These rights are limited until 60 years from the photo’s first publication date (section 25). More rights, on the contrary, are not time-limited. These rights include the right to decide whether to disclose one’s work, the right to be recognized for the work (right to attribution), and the right not to be altered (right of integrity). The “click-of-a-button” dynamics have been posing a threat to these rights. Bombay High Court, in Kesari Maratha Trust v. Devidas Tularam Bagul, held that the publication of photographs without permission of the photographer by copying them from another published material is an infringement of the copyright photographs.
After determining the ownership of a photograph, the next question to consider is the rights of the person who appears in the photo. According to Copyright law, the individuals who are the subjects of a photograph do not have inherent rights. Typically, if a photographer wants to use a picture of a model for commercial purposes, they need to obtain a model release form. This is a legal document signed by the model, outlining how the photographer can use the model’s image and protecting the model’s rights. Although the model does not hold a copyright, they have privacy rights. As per the Universal Declaration of Human Rights, no one can be subjected to arbitrary interference in his private life, nor can they suffer attacks on his honour or reputation. The European Charter of Human Rights also states that everyone has a right to respect for his private and family life, his home, and correspondence. Naomi Campbell, a supermodel who had denied drug addiction, was photographed by the Daily Mirror exiting a Narcotics Anonymous meeting, which was then published. In the UK case Campbell v. MGN, the House of Lords held that, in certain circumstances, even if photographs are taken on public roads without the person’s consent, they may violate an individual’s privacy. On the same lines, the Supreme Court of India held the right to privacy to be a fundamental right under the ambit of Article 21 in Puttaswamy’s judgment. The right entails that every model has the right to be left alone and not made the subject of public criticism. This also means that images of the model must not be made to intrude into a person’s private life. Therefore, to restrict the abuse, exploitation, or unauthorized use of a model’s image, remedies such as filing a case under defamation alleging that a claim is false and has caused damage to a person’s reputation or infringement of the right to privacy are available.
As noted above, infringement of a photographer’s rights occurs when there is an unauthorized use of his work without his permission. Photo manipulation, the process of altering a photograph using various techniques, has also become very popular and can lead to copyright infringement. Suppose photo manipulation is to the extent that it creates an original work. In that case, it will not be considered an infringement but an original work in which a new copyright will subsist. However, if the previous work retains its originality after the manipulation, it can infringe the copyright. This scenario, however, does sit right with no protection that copyright law has to offer to the models. Professional models live from their image, and when their pictures are photoshopped to produce body types only attainable with the help of photo editing software, it becomes socially problematic. The main objective of photo manipulation is to make images look better. This creates a dilemma as unrealistic beauty standards are set in society, draining self-esteem.
In 2012, supermodel Coco Rocha was photographed by Elle Brazil Magazine in a dress with cutouts and skin-coloured tape. The model had a policy of not appearing partially or naked. However, Elle Brazil altered the image to show more skin. To deal with the problem, the laws are being passed. For Instance, the Photoshop Law in Israel requires models to be 18.5 BMI and for advertisers to label retouched images. This law is designed to protect models from unrealistic beauty standards and the potential damage to their self-esteem caused by excessive photo manipulation. Similarly, in 2017, France passed a law requiring advertisers to label photographs that have been digitally altered. On the other hand, American courts emphasize the placement of the consent component in the contracts to deal with the claims of digital manipulation.
Technology has changed how people are perceived and portrayed. While there have been some positive developments, the right to privacy and handling photoshopped images are still significant issues. Models have been using social media to express their concerns, but since they are not well-known, it’s difficult for people to tell the difference between an original and a retouched model image. As a result, their voices often go unheard.
Therefore, it’s crucial to establish new rights to protect people’s images and regulate the retouching of photos. In the meantime, it’s vital for models who use their images professionally to include clauses in their contracts that will protect their interests. These clauses could cover the specific use of the image, the period for its use, and authorization for any retouching of the picture.