Can This Photographer Really Sue Prime Minister Narendra Modi For Allegedly Stealing His Photo

PM Modi, unknowingly, used photographer Bimal Nepal's photo for his Dhanteras Facebook greetings, and is now being threatened to be sued by the photographer. Here we find out if that is possible

PM_Narendra_Modi

India’s Prime Minister Narendra Modi is a big believer in social media. It is a no secret that the ex-chief minister of Gujarat has been using the medium since the time other politicians either made fun of social media or tried hard to put brakes on to it.

Today he and his NDA government at the center has redefined governance and international diplomacy via social media. The PM makes a point to keep abreast his 24 million fans on Facebook and 7.59 million followers on Twitter with his mundane activities – from wishing on festivals to his meeting with dignitaries, you are updated like never before on what your elected PM is doing at work.

October, the month of festivals saw Modi wishing on all occasions and so did he for Dhanteras – a day when the goddess of wealth and prosperity Lakshmi is worshiped. “Greetings on Dhanteras. May Lord Dhanvantari bless us with prosperity, joy and good health,” he shared on Facebook along with a nice visual.

Narendra_Modi_Dhanteras

The content went viral with 45K shares, 496K people liking it and another 16K fans commenting on the post. A message from Modi is always a hit on social media but this one went viral since acclaimed US based photographer Bimal Nepal stated that the PM has used one of his photographs without giving any credit.

Interestingly, Bimal had posted the same photograph on 21st October, 2014 on his Facebook page which was reproduced with edits by Narendra Modi’s Facebook page on the same day. Bimal writes on his Facebook“One of my photographs has been used by one of my greatest heroes, a true leader Indian Prime Minister Narendra Modi in his Facebook page. I shot this photo in my dining room last year with the help of my daughter Abina. She set up the candle lights on Diwali in our home in Cambridge Massachusetts. I am truly honored! “

However his greatest question and concern was that there was no credit to the photographer nor any permission was sought by the team managing Modi’s social media. “What will happen so called © copyright issue? He did not ask for the permission,” Bimal posted on Facebook and it got the much needed attention.

A PM known to be a super hero on social media stealing a photo is the best story to run on the long Diwali weekend in India. BuzzFeed grabbed it with both hands and the rest of the pie was grabbed by the majority of Indian media like India Today, Indian Express, DNA India, Hindustan Times, among others.

The issue blew into a nightmare for the PMO of India when it was reported that Bimal was taking legal route in the US on the grounds of copyright infringement. Talking to Lighthouse Insights on the same Bimal shared that it isn’t just about the case of his photograph but is also about the Copyright protection for all photographers world wide.

“In US, Canada and Europe copyright law has been strictly followed, but millions of our photos, artwork, software, apps, and Intellectual properties has been misused in emerging countries like in India, China and some other countries.  This has to be stopped in this global digital age. I am not sure how to resolve this. In my case I am not sure if there is an international court. My lawyers and professional groups are working for the solution. This is also a concern of the World Intellectual Property Organization, UN, US and Indian Governments. I am sure the Modi Government will realize and come up with the solution.”

Extensive coverage by the online media and the threat of US Copyright Law triggered a statement by PMO India after a few days. It said that since the photo used was publicly available, there was no need to take permission of the photographer. It further stated that the photograph has been used on several websites, including that of the Australian government.

In fact the photo was sent by a creative agency which has clarified that it was available on prominent and legitimate websites which offer the option of downloading it for free. Raj, the proprietor of the agency, which provided the photograph in question, rubbished the allegation that the photograph was stolen and described the allegations as wild insinuations.

Talking to Niti Central on the same, Raj states – “This specific photo was available on prominent and legitimate websites on the internet which offer the option to download for free. In accordance with usual practice, we downloaded the photo and sent it. There is no question of ‘stealing’ anyone’s photo. If we knew that the photo belonged to the photographer as he claims it does, and if we would not have provided it or we would have obtained prior permission. These allegations and insinuations are far from the truth.”

According to the agency, the image was downloaded from Appszoom.com which came with a disclaimer – “All images are taken from the public domain and have no copyright attached to them. All images can be found freely and have specifically been chosen not to intend copyright restrictions. We also assert its rights under the “Fair Use” doctrine pursuant to United States copyright law and the equivalent in other jurisdictions.”

Additionally, PMO India did reach out to Bimal to sort matters and had requested him to share the original image so that he can be acknowledged for his work. But it was reported that the photographer chose not to respond to the suggestion.

However, Bimal has rubbished the claims of PMO India. While he is unsure who else is misusing his copyright protected photo, he thinks it may be some websites in India. Further, he added, “There is a misconception that you can publish anybody’s photo with the credit, that’s not true. First, you need permission before publishing from its owner.  And you can publish with the appropriate credit. In this case they publish without my permission. When they realize their mistake, I have been asked by the PMO to transfer its copyright to them for free! So they will acknowledge! This is nonsense.  The photograph is my bread and butter. Free credit makes no sense to me.”

Author, photographer and avid traveller, Ajay Jain stands with Bimal. He says, “You cannot use any material for any reason whatsoever without an explicit written permission of the owner. Just because it is posted on the net does not mean it is free property – unless it says so explicitly. I cannot use someone else’s car just because it is parked on a public road – so why should IP be any different? Giving credit or link back is not enough. I cannot sport a thank you banner on someone else’s car and drive off, can I?”

Ajay further states that it is Bimal’s choice who he allows to go scot-free and who he does not on being asked whether he thinks that the photographer is intentionally targeting the PM to gain mileage when his image is already being used by many others. “If traffic cops let five people off but catch you, can you plead that others were let off and so should you? He should go to court. High time we recognized the value and rights of IP creators.”

Bimal Nepal Flickr
Bimal Nepal Flickr

Clearly Bimal has a point and he has the rights to chase the issue while some may argue he is trying to gain mileage. “That’s not true. I am fighting to protect all photographers’ rights who live all over the world including in India. From this protection all professionals will be benefited. I am sure the Indian Government wants to protect its citizens right too.  Mr Modi is our true leader. I am one of his greatest fans. I am fighting for a real cause. I am sure Mr Modi can fix it.”

But in this open digital world ownership lines are being erased very quickly. For a creative person his work is his life and it is his right to chase it down. While it is a fact that Bimal’s image was being used by other sites but that can’t be an excuse for someone to use it. But it isn’t as simple as it looks like.

Most of the times you are not sure who is the owner of a certain creative work so you are advised to approach credible photo sites. In this case the agency that provided the picture to the PMO India did the same but looks like the website hosting the image was playing with copyright laws.

Question is ‘Can the photographer sue the PM for this act?’

LI spoke to Erik Pelton, one of the leading Copyright & Trademark lawyers in the US about the same and he had to add this: “As reported by the PM’s office, the agency used an image from a website that explicitly stated that the Image had no restrictions and that no permission was required for “fair use”. It is not clear how the artist intends to claim damages from this particular user only while it is clear many other sites have used the same image that is listed as in the Public Domain with no restrictions on usage.”

Further, Erik states that in the US, “fair use” can be a defense to the use of protected and copyrighted works.

A “fair use” analysis includes:

  • how much of the original work was used,
  • what was the intention of using that work,
  • whether the usage was for economic gain, and
  • how was the artist harmed.

“Given that the image at issues was used for greeting the Prime Minister’s followers on social media on the occasion of an Indian festival, even if the image is not in the public domain there is a strong argument that this was a fair use as the PM had no intention of economically gaining from the usage of an image from a site that appeared to give him the permission to do so,” Erik informed.

Bimal hasn’t updated LI or his Facebook page about the current status of the legal route he is taking. But it seems that the photographer has very bleak chances to hold the Indian PM guilty in the court. However, this incident should serve as a warning to all those who pick up photographs from the internet for commercial or non-commercial purposes without giving credit or taking prior permission. Especially in this hyper active social media age where you don’t need to keep an eye on your work, your fans would do it for you.