The Copyright Act protects the original creative artistic craftsman irrespective of the fact whether the artwork possesses any artistic quality or not. as per section 2c e of the copyright act 1957, the artwork means- a painting, a sculpture at drawing( including a diagram, map, charts or plan), an engraving or a photograph whether or not any such work possesses artistic quality; work of architecture; and any other work of artistic craftsmanship. The definition of the artwork provided in the act is inclusive and is fairly descriptive.
The copyright act further defines the meaning of engraving, photograph, work of architecture, and work of sculpture through the various sections. These are reproduced as under:
- The work of architecture as provided under section 2 (b) of the copyright act means any building or structure having an artistic character for design or any model for such building or structure. To enjoy protection under the copyright, act the work of architecture must be located in India [Section 13 (2) (iii) of Copyright Act]
The copyright shall subsist only in artistic character and design of a work of art and texture and it shall not extend to process or methods of construction [section 13(5) of Copyright Act].
- Engraving- As per section 2(i) of the Copyright Act, 1957, Engraving includes etchings, lithographs, woodcuts, prints, and other similar work not being photographed.
- Photograph-Photograph includes photo-lithograph and any work produced by any process analogous to photography but does not include any part of cinematograph film as provided under section 2(s) of the Copyright Act
- The work of sculpture includes cast and molds as per section 2(za) of the Copyright Act.
Broadly the artwork could be categorized into two parts for the registration purposes:
- The artwork capable of being used on goods and services
- The artwork not capable of being used on goods and services
The artwork capable of being used on goods and services
It is that type of artwork that could distinguish the goods or services of one undertaking from those of goods and services of another undertaking. In simple terms the artwork which have the potential to eventually turn into a trademark or such mark which has a potential to become a brand identity of a business and could be protected as a trademark are treated as artistic work capable of being used in relation to goods and services for copyright registration under the category of artistic work. This could be brand, logo, label, packaging, design cartoons, and figurative drawings, etc which have the potential to be applied on goods or services.
Where artwork is capable of being used on goods and services the applicant needs to submit a search certificate (TM-C) issued by the Trademark Registry as provided under Section 45 proviso of the Copyright Act at the time of making an application for registration of such artwork with the copyright office. Cartoons and animation characters can be used for the brand promotion can be applied on goods or can be used as mascots in events or can be applied in an animated game or could be sold for monetary gains, hence for any such artistic work submission of a search certificate is mandatory at the time of seeking copyright registration for such cartoon and animation characters.
It is important to mention here that an artistic work registered under the copyright act and is also capable of being registered under the Design Act 2000 but which has not been so registered will cease to enjoy the copyright protection as soon as any article to which the design has been applied has been reproduced more than 50 times by an industrial process either by the owner of the copyright or with his license by any other person. Further, the copyright shall not subsist in the artistic work capable of being used on goods or services which is registered under the design act 2000.
The artwork is neither capable of being used on goods and services nor used in relation to goods or services
The artwork which has never been used on goods or services or neither capable of being used on goods and services doesn’t require any search certificate to be submitted at the time of seeking registration with the copyright office. Examples of such artwork could be paintings, sculptures, maps, charts and lithographs, and other 3-dimensional works, etc. However, if a painting or drawing or a photograph or a sketch which is not intended to be used on goods or services do not require any search certificate from the Trademark Registry for its registration as an artwork under the Copyright Act.
There are certain types of works which have both the artistic and literary element in them and the applicant needs to apply for registration of both types of work separately to enjoy protection in the whole work. Meaning thereby, for the artistic element the applicant needs to make an application under the artistic category, whereas, for the literary element the application has to be filed under the literary work. Examples are board games, card games, websites, comic books, Brochures, Pamphlets, posters, catalogs, etc.
The search certificate is required for the registration of the images appearing on the website, board games card games as they may be used along with any brand whose label or logo appears on the work for monetary gains. However, where such works are used only for educational purposes or social work without any commercial exploitation of the same then the search certificate may not be required at the time of registration provided the applicant submits an affidavit for the same.