Copyright Infringement: Ad with “Humanity” Mural to be Removed

In a recent copyright infringement case, the Delhi High Court, vide an interim order, directed the Defendant, Acko General Insurance, to take down the advertisements from online platforms bearing the mural titled “Humanity”.[1]

In October 2022, the Plaintiffs, St+art India Foundation and Paola Delfin Gaytan, executed an artist agreement pertaining to the artistic works created during their projects and as per this agreement, the intellectual property rights, including copyright associated with such works vested in the Plaintiffs. The subject work was said to have been created in collaboration with the Mumbai Port Authority, in respect of which a Memorandum of Understanding was executed a few months before the Plaintiffs entered into the artist agreement.

When it came to the knowledge of the Plaintiffs that the said mural was reproduced by the Defendant on a hoarding as part of its campaign, “Welcome Change”, they sent a legal notice earlier this year, asking the Defendant to remove the hoarding along with the online media posts that bore the advertisement with the subject work. To this, the Defendant responded by stating that the mural was painted on a public building situated in Sassoon Docks, Mumbai, i.e., the subject work was permanently situated in a public place or premises to which the public had access and hence the use of the mural in the Defendant’s advertising campaign did not constitute copyright infringement according to Sections 52(1)(t) and 52(1)(u) of the Copyright Act, 1957.

Thereafter, the Plaintiffs conveyed that Section 52(1)(t) was limited to “painting, drawing, engraving or photograph of a sculpture, or other artistic work falling under sub-clause (iii) of clause (c) of section 2” whereas the subject work was covered under Section 2(c)(i) of the Act. Further, the subject work was said to be temporarily situated in the said location.

The Plaintiffs filed the present suit before the Delhi High Court asserting that the subject work amounted to artistic work under Section 2(c)(i), and copyright subsisted in such work as per Section 13(1)(a) of the Act. As the author of the mural, Plaintiff no. 2 claimed moral rights over the subject work as conferred under Section 57 of the Act.

In its order dated November 10, 2023, the Court observed, “There could not have been a presumption that the same was a public domain work that could be used in the manner as the Defendant has done. The same is not for a mere public messaging but for an advertisement – albeit with a social cause. The use being for a commercial purpose by the Defendant, the question whether the same qualifies as fair dealing or fair use, would require to be examined.”

Although the hoarding with the said advertisement was subsequently removed, the advertisement was retained on Instagram and other online platforms. However, the Defendant agreed to take down these posts, in light of which the Court issued an interim order, directing the Defendant to take down the posts within 72 hours.

The matter will be heard next on February 2, 2024.

[1] St+art India Foundation & Anr. vs. Acko General Insurance [IA 22638/2023 in CS(COMM) 822/2023]