Delhi High Court: Plaintiff 1, St+Art India Foundation, and Plaintiff 2, Paola Delfin Gaytan had filed the present suit against defendant, Acko General Insurance objecting to defendant’s use of one of plaintiffs’ artistic works titled ‘Humanity’ in its advertisements. Prathiba M. Singh, J.*, opined that since defendant had agreed to take down the Instagram posts and any other online postings of the mural, thus directed defendant to take down the said listings within 72 hours from the date of this order.
Background
Plaintiffs were involved in urban regeneration by incorporating artistic works to make urban cities and spaces more interesting and artistic. Plaintiffs claimed that their name ‘St+Art’ suggested that they play an instrumental role in embedding artistic elements in the streets of Indian urban centres, especially, in metropolitan cities such as Delhi, Mumbai, Hyderabad, and Bengaluru. Plaintiffs submitted that they aimed to make public spaces more vibrant and interactive and some of the urban regeneration activities undertaken by plaintiffs included projects like Lodhi Public Art District in Delhi, Swachh Bharat Mural, projects in Bengaluru, Delhi Urban Shelter Board Project etc. Plaintiffs also claimed to have created India’s largest mural on the MTNL building in Mumbai, known as ‘Dadasaheb Phalke’, and Gandhi Ji’s tallest mural on the Delhi Police Headquarters in New Delhi. Plaintiff 2, a Mexican painter, and muralist had been engaged in various artistic and social activities and she claimed to have drawn murals in Belgium, St. Petersburg, Florida, Finland, New Delhi, and Chennai.
The subject matter of the present suit was a mural titled ‘Humanity’ and the said artwork was created by Plaintiff 2 in collaboration with Plaintiff 1, under an Artist Agreement dated 03-10-2022. Under the said Agreement, plaintiffs jointly owned the copyright and all related IP rights of the Works of Art created during the projects taken up by plaintiffs. It was submitted that the said Agreement included the artwork titled ‘Humanity’, for which admittedly no rights had been licensed to any third parties and Plaintiff 1 had the right to take actions to protect against any infringement of copyright subsisting in the works created, while Plaintiff 2 was obligated to render assistance.
Plaintiffs asserted two main rights regarding the artwork titled ‘Humanity’. Firstly, they claimed copyright of the artistic work under Section 2(c)(i) and Section 13(1)(a) of the Copyright Act, 1957 (‘Act’) and secondly, Plaintiff 2 asserted moral rights over the work, as recognised in Section 57 of the Act.
Defendant was a subsidiary of Acko Technology and Services (P) Ltd., collectively referred to as the ‘Acko Group’ which was an insurance technology start-up that developed and licensed technology products specifically for the insurance sector. Plaintiffs alleged that the said artwork was created in collaboration with the Mumbai Port Authority vide Memorandum of Understanding dated 09-06-2022 and plaintiffs were the holder of the copyright in the said mural. In February 2023, defendant had published a hoarding as part of its advertisement campaign ‘Welcome Change’, in which defendant had reproduced the entire mural for commercial benefit.
On 14-02-2023 and 03-03-2023, plaintiffs issued a legal notice calling upon defendant to remove the said hoarding and to take down the related Instagram posts and other online media posts. Defendant vide letter dated 03-04-2023 replied claiming that the act of defendant was exempt from infringement in view of Section 52(i)(t) and 52(i)(u) of the Act.
Analysis, Law, and Decision
The Court opined that the hoarding incorporating the said mural would reveal that it was clearly an advertisement. The Court noted that defendant had confirmed its removal, but it continued to remain on online platforms, but defendant was willing to take down any related social media listings, including on Instagram, Facebook, etc.
The issue for consideration before the Court was “whether defendant’s conduct would constitute fair dealing or not under the provisions of the Act?”. The Court opined that there was no doubt that the advertisement of defendant reproduced the mural and there could not have been a presumption that the same was a public domain work that could be used in the manner as defendant had done as the same was not for a mere public messaging but for an advertisement, though with a social cause.
The Court further opined that since defendant had agreed to take down the Instagram posts and any other online postings of the mural, thus directed defendant to take down the said listings within 72 hours from the date of this order. The Court further directed that the URLs displaying the said mural on defendant’s posts, if any, might also be communicated to defendant by plaintiffs.
The matter would next be listed on 02-02-2024.
[St+ Art India Foundation v. Acko General Insurance, 2023 SCC OnLine Del 7277, Order dated 10-11-2023]
Advocates who appeared in this case :
For the Plaintiffs: Pravin Anand, Dhruv Anand, Udita Patro, Sampurnaa Sanyal, Nimrat Singh, Advocates
For the Defendant: Peeyoosh Kalra, V. Mohini, Aarti Aggarwal, Advocates
