MODULE 12

MODULE 12
COPYRIGHT AND DIMENSIONAL ARTS

6.1 WHAT IS ART?

A rt is a defining character of human behaviour in which a human gives physical form to
his/her imagination. There is no specific definition to define art. However, few accepted
definitions are: Layton (1991) wrote: ‘we identify art works in a formal sense because we
find them aesthetically pleasing and we find that they enhance our perception of the world
around us through the apt use of images’.1 Haselberger (1961) defined works of art as objects
produced with the intention that they be aesthetically pleasing and not merely pragmatically
functional.2

6.2 WHAT IS THREE DIMENSIONAL ART (3D art)?

T he first and most important question that is needed to be answered is what is a three
dimensional art? Answer to this question lays in the name itself i.e. ‘Three-Dimensional’
art. Therefore, any form of art that has all the three dimensions: length, depth, and width
would be termed as three- dimensional art. Three-dimensional art gives life like effect; it creates
an illusion in the eyes of the viewer that makes him/her believe that the art is well rounded,
complete and true to life.

Fundamentals on which Three-dimensional Art are established:

! SUBJECT MATTER: It the topic on which the art would be based.

! CONTENT: Content is the explanation of the subject matter. It describes and outlines the

style in which the subject matter would be identified.

! FORM: The actually display of the content and subject matter of the 3D art is the form.

This is the most important step as its form that determines the expression of 3D art; it

should have multiplicity of the viewpoints. Whichever side the viewer looks from the art

should speak to them in similar ways.

For e.g.: A painter decides to paint a 3D picture of a mermaid. He defines that his picture

would be divided into two parts, the upper part and the lower part. The upper part will be

of a female and the lower part will be like a fish. Finally, he paints the picture.


1 Layton R. The Anthropology of Art. 2nd edn. Cambridge: Cambridge University Press; 1991.
(http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2815939/#b49)
2 Haselberger H. Methods of studying ethnological art. Curr Anthropol. 1961;2:341–384.
(http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2815939/#b38)


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In this case:
Subject matter: The idea of painting picture of mermaid.

Content: The definition of the painting.
Form: the expression of the idea by painting the picture.

6.3 EVOLUTION OF DIMENSIONAL ART (3D, 4D, 5D AND 6D)

H uman artistic creativity clearly has a long history. It is an accepted fact that the last
common ancestors of modern humans were chimpanzees. There are many captive
chimpanzees who enjoy painting with colour – their ‘art’ resembles the paintings that
young children make with pots of colour applied with fingers or brushes. Congo, an exceptionally
intelligent chimpanzee resident in London Zoo, was encouraged to paint by the
zoologist/anthropologist Desmond Morris in the late 1950s.3 Therefore, it is quite evident that
the talent of using colours on a surface is ancient.

The next step was body painting and decoration. The oldest known use of ochre is 164000 BP
from a South African coastal site, Pinnacle Point, where 57 pigment pieces were found.4 Then
came the decorative zig zag patterns. Then evolved dimensional art forms. Particularly 3D art
followed by 4D, 5D and 6D.

In modern times while creating different art forms especially on block stones and other similar
structures, the creator felt he is realising or revealing the form. This was graphically described by
Michelangelo, e.g. ‘I saw an angel in the marble and carved until I set him free’, and is poignantly
illustrated by his unfinished sculptures of slaves, on display at Florence’s Accademia gallery.5

The era of 3D art began after 14th century, before that there were no efforts made to portray the
three dimensional world in art. 6Giotto (c. 1267 – 1337) and Duccio (c. 1255-1260 – c. 1318-
1319), Italian artists, actually explored for the first time the idea of depth and volume in their art.
They used shadow as a means to create illusion. Masaccio (1401 – 1428) the first great painter
of the early Renaissance period, the figures in his paintings had volume and the buildings and
landscapes realistically recede into the distance. By late 15th century the artist started creating
there art in realistic world. Initially, it was linear perspective of that gave illusionary effect,
towards the end of 19th century Paul Cézanne gave a new perspective , which is followed even
today, his art forms allowed each object to be independent within the space of a picture while
letting the relationship of one object to another to take precedence over traditional single-point
perspective.7


3 http://www.telegraph.co.uk/news/1492463/Art-world-goes-wild-for-chimpanzees-paintings-as-Warhol-work-
flops.html
4 Marean CW, Bar-Matthews M, Bernatchez J, et al. Early human use of Marine resources and pigment in South
Africa during the Middle Pleistocene. Nature. 2007;449:905–908.
(http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2815939/#b59)
5 http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2815939/
6 http://www.op-art.co.uk/history/perspective/
7 http://www.op-art.co.uk/history/perspective/


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With the development in science and technology the world is seeing new dimensions every day

like 3D then 4D followed by 5D moving on to 6D and so on. Mathematically speaking the number

of dimensions is the number of mutually perpendicular lines you can have at a point. Mutually

perpendicular means that the angles between the lines are 90 degrees. Draw two lines on a

piece of paper and have them cross at 90 degree angles. Now see if, staying on the piece of

paper, you can draw a third line at 90 degrees to the first two lines. It is impossible. But if you

take your pencil or pen and place it straight up at the point where the two lines meet, you now

have 3 such lines but you have also moved into the third dimension. This continues upwards

through however many dimensions you want. A plane has two. A box has three. And so on to

four, five and six, we, as three dimensional creatures, cannot imagine 4 or 5 or 6 dimensions

because we can't see more than three dimensions.8

9Due to the fast growth of movies, video, and the entertainment industry, 3D Theatres have
been enhanced by the addition of special simulations. The combination of 3D movies with chair
movement (vibration, sway, tilt, drop, wave motion) and other chair effects such as wind
blowing, water spraying, leg and back ticklers is usually considered a 4D experience. Using
additional hall effects such as smoke, rain, lightning, air bubbles and special smells is often
regarded by many as 5D. However, since there is no standard for using these terms, each
company uses its own terminology and it is often confusing. It is important to disregard the
marketing slogans (4-5-6-7D) used by different companies. In simple words, it can be said as a 4D
is one that usually adds motion controlled seating. 5 and 6D add other sensory input such as
adding smells to the experience.

For eg : a theatre a showing a movie about ‘a fire brigade fighting a building on fire’. The theatre
has motion controlled seats. The things one will watch in the movie would be lots of people, a
building, water tanker, fuel, oil, sound of the rumble of the engine etc. Now, the person would
feel the vibrations as the tanker skims the water to scoop it up, hear the rumble of the engines,
smell the fuel and oil and will feel the heat as it approaches the fire and smell the smoke.

In this case the length, depth and height are in the 3D effects, the 4D would be the motion
controlled seating, the 5th would be the smells, and the 6th would be the feel of the heat (or
other tactile/touch effects).

Philosophically, it is said that 4th dimension is the time, 5th dimension is the space and 6th
dimension is creation. 3d is visual, One needs to somehow form the thought of it, or visualize
what exactly is needed.10 Then, 4d is visual and interactive, as soon as one really feels and
expects something one can have it.11 Like a 3d rollercoaster ride where the chair tilts. 5d and 6d
are full immersion with surround and screen so it is all around you with holographic characters
that look like they are standing next to the person, maybe with temperature fluctuations and the
long anticipated smell-o-vision. In 5d and 6d a whole new time and feeling is created. One is
actually taken to some other world.


8 http://answers.yahoo.com/question/index?qid=20110627111106AAryUkN
9 http://answers.yahoo.com/question/index?qid=20110303204149AAfNgqX
10 http://www.in5d.com/beyond-3rd-dimension.html
11 http://www.in5d.com/beyond-3rd-dimension.html


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There is not much difference between 5D and 6D, only a thin line difference. In 5th dimension
one needs to form the thought and you are there. In 6th dimension what is needed is
automatically produced because of the creation factor. 5th Dimension is the Probability Space
limited by Causality. Definition of Causality in Wikipedia is, "Causality (also referred to as
causation) is the relation between an event (the cause) and a second event (the effect), where
the second event is understood as a consequence of the first". 6th Dimension is the Quantum
Space where anything can be possible within the basic rules of that Universe. You can disappear
from one point in Time and Space to reappear in other totally different point in Time and Space.
6th Dimension gives you more freedom than the 5th dimension. For example, you can become
president of your nation by choosing different events in your life from probability space, where
each event will cause another event to preserve causality. That's what we call "Law of
Attraction", but you cannot choose and go back in time into the period of Dinosaurs. To go back
to visit Dinosaurs, you need an extra Dimension, which is 6th Dimension. You can imagine 5th
dimension as different branches from the particular point on the same timeline, but to change
timeline itself, one needs 6th dimension. Therefore, 6D is the latest technology.

6.4 COPYRIGHT

T he very first question that is needed to be answered is what is a copyright? As the name in
itself suggests it is a right to copy. The current copyright law of the United Kingdom is to
be found in the Copyright, Designs and Patents Act 1988 (the 1988 Act), as amended. This
came into force on 1 August 1989, for the most part, save for some minor provisions that were
brought into force in 1990 and 1991. The main thrust of the law of copyright is that it grants the
authors and other creators an incentive to create and to promote their intellectual, moral and
economic interests.12

The scholars of Ancient Greece and the Roman Empire were the first to be concerned about
being recognised as the authors of their works, but they did not have any economic rights13. The
history of modern copyright law dates back to 18th century with the enactment of English Statute
of Anne, which applied to England, Scotland, and Wales. It was “An Act for the Encouragement of
Learning, by vesting the Copies of Printed Books in the Authors or purchasers of such Copies,
during the Times therein mentioned”. Initially copyright was given to books only. With the
development in human creativity, science and technology the right was extended to a wide range
of works like: maps, performances, paintings, photographs, sound recordings, motion pictures,
computer programs etc. Internationally till 19th century the copyright laws varied according to
jurisdictions. To solve this problem in 1886 Berne Convention was adopted to provide mutual
recognition of copyright between nation states and to promote the development of international
standards for copyright protection.

In different countries copyright has developed differently - even in its fundamentals. Britain
(UK) developed copyright as a property concept through the 18th and 19th century and still


12 http://indiankanoon.org/doc/1217709/
13 http://www.ipo.gov.uk/types/copy/c-about/c-history.htm


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has 'the effort put into a work' as part of its copyright value as well as the original 'creative'
value. USA followed Britain with a 'copyright-as-property' model and developed it in within their
own entrepreneurial culture. In mainland Europe copyright developed along a different path -
copyright as author-centred - and it is from this concept that moral rights developed. Moral
rights have only been added into copyright legislation in the UK since 1989.14

UNITED STATES OF AMERICA: It is a principle of American law that an author of a work

may reap the fruits of his or her intellectual creativity for a limited period of time. Copyright is a
form of protection provided by the laws of the United States for original works of authorship,
including literary, dramatic, musical, architectural, cartographic, choreographic, pantomimic,
pictorial, graphic, sculptural, and audio visual creations15.

UNITED KINGDOM: In 1518, the first copyright privilege was granted in England. It was issued

to Richard Pynson, King’s Printer, the successor to William Caxton. The privilege gave a monopoly
for the term of two years. These copyright privileges were called as monopolies. Later in 1701,
the parliaments of England and Scotland were united as a result of the Anglo-Scottish Union. The
new parliament was able to change the laws in both countries and an important early piece of
legislation was the Copyright Act of 1709, also known as the Statute of Anne, after Queen Anne.
The act came into force in 1710 and was the first copyright statute.16 The current copyright law
of the United Kingdom is to be found in the Copyright, Designs and Patents Act 1988 (the 1988
Act), as amended. This came into force on 1 August 1989, for the most part, save for some minor
provisions that were brought into force in 1990 and 1991.

INDIA: The law of copyright was introduced in India only when the British East India Company

was established in 1847. The term of the Copyright was life time of the author plus seven years
after the death of the author. But in no case could the total term of copyright exceed a period of
forty-two years. The government could grant a compulsory licence to publish a book if the owner
of copyright, upon the death of the author, refused to allow its publication. Registration of
Copyright with the Home Office was mandatory for enforcement of rights under the Act. In 1914
the Indian legislature under the British Raj enacted the Copyright Act of 1914. It was almost
similar to the United Kingdom Copyright Act of 1911. But the major change that was brought in
this Act was criminal sanction for infringement. Number of times amendment were brought to
this Act up till 1957. Subsequently, The Copyright Act, 1957 was enacted in order to suit the
provisions of the Berne Convention. This Act was enacted by Independent India by which we are
governed till date17.

6.5 ESSENTIALS OF COPYRIGHT


14 http://copyrightsandwrongs.e2bn.org/ipr-and-copyright/history-of-copyright
15 http://www.copyright.gov/circs/circ1a.html
16 http://www.sinapseblog.com/2011/02/history-of-copyright-law.html
17 http://www.sinapseblog.com/2011/02/history-of-copyright-law.html


5

T here are few requirements that a work should have to get a copyright over it. These are:
1. ORIGINALITY: In University of London Press Ltd. v. University Tutorial Press Ltd.18 it
was held that to be original, the work must originate from the author and not copied by
him from another work. The judge propounded a 'rough practical test', "what is worth
copying is prima facie worth protecting". This formulation was also approved in Ladbroke
(Football) Ltd. v. William Hill (Football) Ltd. The Court in the said case observed, "The
requirement of originality means that it is the result of a substantial degree of skill,
industry or experience employed by him."
2. PRACTICALLY, IT IS IMPOSSIBLE FOR ANY WORK, ESPECIALLY THE WORKS THAT NEEDS

COPYRIGHT PROTECTION TO BE ORIGINAL IN LITERAL TERMS. Therefore, the meaning of
originality cannot be taken in strict sense, it has to be liberally interpreted. The work need
not be original in the sense that it must involve any original or inventive thought rather it
should involve “at least some minimal degree of creativity.” The idea need not be novel
and completely new, what is important is that the expression should be original. Same
idea can be expressed in similar manner. Those different modes of expression should be
fresh. The work should be a result of man’s own skill, labour and judgement. As In
University of London Press Ltd. v. University Tutorial Press Ltd.19 Peterson J. stated that:
“The word ‘original’ does not in this connection mean that the work must be the
expression of original or inventive thought, and, in the case of ‘literary work’, with the
expression of thought in print or writing. The originality which is required relates to the
expression of thought.” It is clearly stated here that the originality required by the law is
not that of revolutionary new ideas but of the way that the thought is expressed.20

3. COPYRIGHT IS ONLY GIVEN IN EXPRESSION OF AN IDEA AND NOT IN IDEAS. In Donoughue

v. Allied Newspaper Ltd.21, it was held by the court that “….if the idea, however brilliant
and however clear it may be, it is nothing more than an idea, and is not pit in form of
words, or any form of expression such as a picture or a play, then there is no such thing as
a copyright at all. It is not until it is reduced into writing or into some tangible form, that
you get to copyright at all, and the copyright exists in particular form of language in
which, or in case of pictured, in the particular form of picture by which, the information
or idea is conveyed to those who are intended to read it or to look at it.”

6.6 COPYRIGHT AND 3D ART

T he Universal Declaration of Human Rights, 1948 mandates state parties to protect the
private incentive for innovators as well as the public interest of maximising access to the
fruits of innovation. Article-27 states that:


18 (1916)2 Ch 6 Oct 608.
19 [1916] 2 Ch 601
20 “Originality” in Copyright Doctrine by Ian Hoare
21 (1937) 3 Ch D 503.


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I. Everyone has the right to freely participate in the cultural life of the community, to enjoy
the arts and to share in scientific advancement and benefits.

II. Everyone has the right to the protection of the moral and material interest resulting from
any scientific, literary or artistic production of which he is the author.

In D.S.G Sidhanti v. Venkateshwara Publishing House it was held that
‘The copyright means the sole & exclusive right to publish the work or any
substantial part thereof and or reproduction of the publication or reproduction of the
translation of the work as per Section 14 of the copy right Act 1957’.22 Copyright is the legal
protection given to the creator of an original literary or artistic work.

Copyright exists for:

I. Original literary, musical, dramatic and artistic works.
II. Cinematograph films
III. Sound recordings
Three dimensional arts fit perfectly in the category of artistic work. Another question that comes
up is what is an artistic work?

INDIA: Section 2(c) of the Copyright Act 1957 (India) defines artistic work as:

I. a painting, a sculpture, a drawing (including a diagram, map, chart or plan), an engraving
or a photograph, whether or not any such work possesses artistic quality;

II. a work of architecture;
III. any other work of artistic craftsmanship



UNITED KINGDOM: Section 4 of The Copyright, Patents and Designs Act, 1988, of U.K.

says:“Artistic work” means–

I. A graphic work, photograph, sculpture or collage, irrespective of artistic quality;
II. A work of architecture being a building or a model for a building, or
III. A work of artistic craftsmanship.
In this Part—

“building” includes any fixed structure, and a part of a building or fixed structure;

“graphic work” includes—

(a)any painting, drawing, diagram, map, chart or plan, and

(b)any engraving, etching, lithograph, woodcutter similar work;

“photograph” means are cording of light or other radiation on any medium on which an image is
produced or from which an image may by any means be produced, and which is not part of a
film;


22 (1968) 1 An WR 323, 328].


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“sculpture” includes a castor model made for purposes of sculpture.23

UNITED STATES OF AMERICA: The Copyright Law in U.S.A. includes sculptural works &

architectural works in subject matter of copyright in section 102 of the Copyright Law of the
United States. As per Sec. 102 in general Copyright protection subsists, in accordance with this
title, in original works of authorship fixed in any tangible medium of expression, now known or
later developed, from which they can be perceived, reproduced, or otherwise communicated,
either directly or with the aid of a machine or device. Works of authorship include the following
categories:

(5) pictorial, graphic, and sculptural works;

(6) motion pictures and other audiovisual works;

(8) architectural works.24

In India & UK three dimensional objects are included in the definition of artistic work. Therefore,
3D art can be protected in form of:

Painting: Painting is a product of art of representing or depicting colours on surface.25
Unless the author of painting employs either skill in painting or work and labour in seeking
to depict some actual object or abstract design the work cannot be protected.26

Sculpture: Sculpture is the product of art of forming representations of things or abstract
designs in the round or in relief by chiselling stone, craving wood, modelling clay, casting
metal or similar process. Work of sculpture includes casts and models.27

Photograph: photograph in simple English is ‘a picture made using a camera, in which an
image is focused on to light-sensitive material and then made visible and permanent by
chemical treatment, or stored digitally’.28 Photograph includes photo-lithograph and any
work produced by process analogous to photography29. Photography is the art of taking
pictures by chemical reaction of light or other radiation such as heat or x-rays on sensitive
film or other material, and it embraces xerography and similar processes.30

Architecture: Section 2 (b) of copyright act 1957, defines a work of architecture means any
building or structure having an artistic character or design, or any model for such building
or structure. Architecture can also be defined as ‘the art or practice of designing and
constructing buildings’31.


23 http://www.legislation.gov.uk/ukpga/1988/48/data.pdf
24 http://www.copyright.gov/title17/92chap1.html
25 Ahuja V.K., Law Relating To Intellectual Property Rights, LexisNexis, 1st edn 2007, reprint 2013 pg 40
26 Laddie, et al, The Modern Law Of Copyright,1980, p107.
27 Ahuja V.K., Law Relating To Intellectual Property Rights, LexisNexis, 1st edn 2007, reprint 2013 pg 40
28 http://www.oxforddictionaries.com/definition/english/photograph
29 Ahuja V.K., Law Relating To Intellectual Property Rights, LexisNexis, 1st edn 2007, reprint 2013 pg 40
30 Hugh Laddie, et al, The Modern Law Of Copyright, 1980, p111.
31 http://www.oxforddictionaries.com/definition/english/architecture


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Work of artistic craftsmanship: The term artistic craftsmanship is not defined anywhere in
the act. It can be understood as any product which is a product of a man’s own artistic
intelligence, labour and creative skill. In Lucasfilm v Ainsworth the court said that ‘To qualify
as a work of artistic craftsmanship, an item must be produced through an act of
craftsmanship and must be "artistic" – it must be a part of its purpose "to appeal to the
aesthetic" or "appeal as a piece of art"’.32

Cinematographic Films: These days there are a lot of films, both Hollywood and Bollywood,
which are using 3D technology to convert a film from 2D to 3D like: Titanic, Avatar, Ice Age,
Krrish 3, Ra.one etc. These 3D art forms will be protected under the category of
‘Cinematographic Films’. Section 2(f) of Copyright act, 1957 (India) defines cinematographic
films as ‘any work of visual recording on any medium produced through a process from
which a moving image may be produced by any means and includes a sound recording
accompanying such visual recording and “cinematograph” shall be constructed as including
any work produced by any process analogous to cinematography including video films.’

6.7 AUTHORSHIP OF 3D ART COPYRIGHT

C opyrights are all about profit sharing by the owner of the intellectual property. The object
of copyright law is to encourage authors, artists and composers to create original 3D art
works by rewarding them with exclusive right for a fixed period to reproduce the works
for commercial exploitation. It is a well settled under the copyright law that the creator of the
original expression in a work is its author. The author is also the owner of copyright.

Authorship is the organization of a meritorious production, embodying the author or the thought
of the author as well as the thought of the other, in an organized and communicable form
and bearing the impress of the distinctive individuality of the mind which produced
it. Section 2 (d) of the copyright Act, 1957 defines the meaning of the authors as the person
who causes the work to be created. As per Section 13 of Copyright Act, 1957 the author is the
first owner of copyright in a work, the authors in different copyrighted works are:

1. In the case of a literary or dramatic work the author, i.e., the person who creates the
work.

2. In case of a musical work, the composer.
3. In case of cinematograph film, the producer.
4. In case of a sound recording, the producer.
5. In case of a photograph, the photographer.
6. In the case of a computer generated work, the person who causes the work to be

created.



32 http://www.wragge.com/analysis_3232.asp


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CAN AN ENTITY OR COMPANY BE FIRST OWNER OF ARTISTIC WORK (3D ART ESPECIALLY)? If the
copyright rule is strictly the answer to this question would be NO. But there are few conditions in
which an entity can be an owner of artistic work. These conditions are:

1. WORK DONE IN COURSE OF EMPLOYMENT: As per Section 17 of the copyright

act, 1957 the author of artistic is not the first owner, if the work made by the author is in
the course of his employment by an employer a contract of service or apprenticeship.
Therefore, a company or entity can hire any person to create a 3D art form. The rule in
general says, copyright in a work made by an employee in the course of their
employment is owned by the employer, unless there is an express or implied agreement
that the employee will own the copyright.33 The important fact to be kept in mind here is
that the 3D art work should be done in course of employment i.e. there should be a
contract for employment. In the case of Zee Entertainment Enterprises Ltd. v. Mr.
Gajendra Singh and Ors.34 The honourable court in para 39 laid down the factors
identifying a contract of employment. The court said ‘The factors to be considered.
Recent case law suggests that the factors relevant to the process of identifying a
contract of employment may usefully be listed as follows:

a. the degree of control exercised by the employer;
b. whether the worker's interest in the relationship involved any prospect of profit or

risk of loss;
c. whether the worker was properly regarded as part of the employer's organisation;
d. whether the worker was carrying on business on his own account or carrying on

the business of the employer;
e. the provision of equipment;
f. the incidence of tax and national insurance;
g. the parties' own view of their relationship;
h. the traditional structure of the trade or profession concerned and the arrangement

within it.’


2. ASSIGNMENT: Copyright is assignable to any person who on the basis of assignment

can claim ownership. As per Section 18 of copyright act 1957 the owner of the copyright
in an existing 3D art work or the prospective owner of the copyright in a future 3D art
work may assign to any person the copyright either wholly or partially and either
generally or subject to limitations and either for the whole term of the copyright or any
part thereof. Assignment must be in writing signed by the assignor or by his duly
authorised agent. It shall identify the specific 3D art works and specify the rights assigned
and the duration and territorial extent of such assignment. It shall also specify the
amount of royalty payable, if any, to the author or his legal heirs during the currency of
the assignment and the assignment shall be subject to revision, extension or termination
on terms mutually agreed upon by the parties.



33 http://www.lawhandbook.org.au/handbook/ch24s01s02.php
34 2008 (36) PTC 53 (Bom)


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In the case of Sree Gokulam Chit and Finance Company (P.) Ltd. v. Johny Sagariga Cinema
Square, Proprietary35 concern explaining the meaning and what constitutes an assignment
the court in para 19 said, ‘A careful reading of Sections 18 and 19 would show that the
purpose of assignment is actually to enable the assignee to exploit the rights that the
owner of the copyright has in (i) the literary, dramatic or musical work (ii) the computer
programme (iii) the artistic work (iv) the cinematograph film or (v) the sound recording.
An assignment serves two purposes. For the assignee, it confers the right of exploitation
for a specified period in a specified territory. For the assignor, it confers the right to receive
royalty. An agreement, the sole purpose of which was just to prevent others from
exploiting the copyrights of the owner and to enable the assignee to get back his loan,
cannot be an agreement of assignment. In an agreement of assignment, the only right that
the assignee has is the right of exploitation. The only right that the assignor has is to
receive royalty. If the assignor does not exploit his rights during the period of assignment,
not only would the assignment lapse on the expiry of the term, but also the money paid to
the assignor would never get repaid. In other words, the rights conferred by an agreement
of assignment on the assignee flow only one way. While after the expiry of the period
of assignment, the copyrights flow back to the assignor, the royalty paid to the assignor
never gets repaid to the assignee.’


3. COMMISSIONED WORK: In the case of a 3D photograph taken, or a 3D painting or

portrait drawn, or an engraving or a cinematograph film made, for valuable consideration
at the instance of any person, such person shall, in the absence of any agreement to the
contrary, be the first owner of the copyright therein.36 Also, if the creator has sold the
entire copyright, the purchasing business or person becomes the copyright owner.37



Herein it is important understand a little about the rights of the authors. Whenever a person
becomes copyright owner, he/she gets few sets of rights:

1. Economic right: these rights are of economic importance and profits can be gained out of
these. These include:

1. Right to Reproduce: The reproduction right is perhaps the most important right
granted by the Copyright Act. Under this right, no one other than the copyright
owner may make any reproductions or copies of the 3D art work.38

2. Right to Prepare Derivative Works like translations and adaptations: The right to
make a derivative 3D art work overlaps somewhat with the reproduction right.
According to the Copyright Act, a derivative work is a work based upon one or more
pre-existing works, such as a translation, musical arrangement, dramatization,
fictionalization, motion picture version, sound recording, art reproduction,
abridgment, condensation, or any other form in which a work may be recast,


35 2011 (3) CTC 747
36 http://rightsandmarks.org/copyrights.html
37 http://fairuse.stanford.edu/overview/faqs/copyright-ownership/
38 http://www.bitlaw.com/copyright/scope.html


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transformed, or adapted. A derivative work usually involves a type of transformation,
such as the transformation of a novel into a motion picture. In the computer industry,
a second version of a software program is generally considered a derivative work
based upon the earlier version.39

3. Right to Distribute: The distribution right grants to the copyright holder the exclusive
right to make a 3D art work available to the public by sale, rental, lease, or lending.
This right allows the copyright holder to prevent the distribution of unauthorized
copies of a work. In addition, the right allows the copyright holder to control the first
distribution of a particular authorized copy. However, the distribution right is limited
by the "first sale doctrine", which states that after the first sale or distribution of a
copy, the copyright holder can no longer control what happens to that copy. Thus,
after a book has been purchased at a book store (the first sale of a copy), the
copyright holder has no say over how that copy is further distributed. Thus, the book
could be rented or resold without the permission of the copyright holder.40

4. Right to Display Publicly (related to artistic works): 41The public display right is similar
to the public performance right, except that this right controls the public "display" of
a work. This right is limited to the following types of works:

1. literary works;
2. musical works;
3. dramatic works;
4. choreographic works;
5. pantomimes;
6. pictorial works;
7. graphical works;
8. sculptural works; and
9. stills (individual images) from motion pictures and other audio visual works.
10. 3D art works.

5. Right to Perform Publicly (related to musical or dramatic works): 42The public
performance right allows the copyright holder to control the public performance of
certain copyrighted works. The scope of the performance right is limited to the
following types of works:

1. literary works,
2. musical works,
3. dramatic works,


39 http://www.bitlaw.com/copyright/scope.html
40 http://www.bitlaw.com/copyright/scope.html
41 http://www.bitlaw.com/copyright/scope.html
42 http://www.bitlaw.com/copyright/scope.html


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4. choreographic works,
5. pantomimes,
6. motion pictures, and
7. audio visual works.
8. 3D art works.

Under the public performance right, a copyright holder is allowed to control when
the work is performed "publicly." A performance is considered "public" when the
work is performed in a "place open to the public or at a place where a substantial
number of persons outside of a normal circle of a family and its social acquaintances
are gathered." A performance is also considered to be public if it is transmitted to
multiple locations, such as through television and radio. Thus, it would be a violation
of the public performance right in a motion picture to rent a video and to show it in a
public park or theatre without obtaining a license from the copyright holder, keeping
in mind that some commercial benefits are gained from it and it is not used for
personal purpose. In contrast, the performance of the video on a home TV where
friends and family are gathered would not be considered a "public" performance and
would not be prohibited under the Copyright Act. The public performance right is
generally held to cover computer software, since software is considered a literary
work under the Copyright Act. In addition, many software programs fall under the
definition of an audio visual work. The application of the public performance right to
software has not be fully developed, except that it is clear that a publicly available
video game is controlled by this right.

2. Moral right: these rights are given to the author irrespective of the economic importance
of the creation. These include:
1. Rights of Paternity: 43The author has a right to claim authorship of his work and can
prevent all the others from claiming authorship of his work. The author also had a right
to demand that his name should appear in all the copies of his work at appropriate
place. He can also prevent others from using his name in their work.
2. Rights of Integrity: 44an author has a right to prevent distortion, mutilation or other
alterations of his work, or any other action in relation to the said work which would be
prejudicial to his honour or reputation.

Moral rights are personal rights that connect authors to their 3D art work. Though they exist only
in relation to copyright material, they are distinct from the economic rights included in copyright.
Moral rights arise automatically and have a legal meaning. The author of a 3D art work has
moral rights in relation to that work, even if the author is not the owner of the copyright in the
work.45

When a copyright owner transfers the ownership to person or entity that will be responsible for
getting the work to market, the owner typically transfers the rights attached to it. But the most


43 Ahuja V.K., Law Relating To Intellectual Property Rights, LexisNexis, 1st edn 2007, reprint 2013 pg 40
44 Ahuja V.K., Law Relating To Intellectual Property Rights, LexisNexis, 1st edn 2007, reprint 2013 pg 40
45 http://www.artslaw.com.au/info-sheets/info-sheet/moral-rights/


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important point to note here is that the moral rights can never be transferred. Moral rights will
always stay with the original creator of the 3D artistic artwork.

6.8 ESSENTIALS FOR PROTECTING 3D ART FORM

T o make sure that three dimensional art forms is protected as a copyright of any entity or
an individual, it is important that it should:

1. The three fundamentals of three dimensional arts, mentioned in the definition
part, should be fulfilled first.

2. The 3D art should be a creation of original intellect having an individual character and
should be expressed in any manner whatsoever. The copyright protection is enjoyed by
expressions comprising a tangible form of an idea, achieved by means of various means of
expression such as written or spoken word, body movement, sound, as two dimensional
and three dimensional forms.46

3. Tangible is something that can be perceived by any of the five senses. Eye is one of the
five sense organs. As mentioned above 3D art is an illusionary effect that a person
creates. Therefore, it’s the sight which is the tangible form for 3D art.

4. Copyright law does not protect ideas. It protects the material or concrete expression of
ideas. In the case of visual ‘artistic works’, as soon as an original work is made in one of
six traditional formats, then copyright arises irrespective of the subject matter of the
artwork. These formats are: painting, collage, sculpture, graphics, photography and
architecture47.

5. The 3D art work need not be unique That is to say, if two artists by coincidence create
works that are virtually identical to each other without copying, each will be entitled to
copyright protection if the other requirements of the statute are present. This is true
even though the works may be substantially similar to one another.48

6. Also in works of art such as sculpture, an engraving etc, copyright subsists whether or not
such work possesses artistic quality. In case of Societe Des Produits Nestle v. Continental
Coffee Ltd.49 the issue was of considering a work to be artistic work or not? The
defendant claimed that the device in question is not artistic work since the device only
uses a mug and red colour. The honourable judge refused to accept the contention. He
said ‘No one can claim an exclusive right to use red colour or a mug, as a part of
his artistic work. But, a mug can be designed and depicted in numerous ways and,
therefore, it is difficult to dispute that hard work and labour is involved in designing a mug


46http://www.dziv.hr/en/intellectual-property-protection/copyright/copyright-work/
47A Developing GlobalFramework by Henry Lydiate inART MONTHLY.
48Introduction to CopyrightBy Leonard D. DuBoff and Christy O. King in TechTrends, September/October 2009
Volume 53, Number 5.
49 185 (2011) DLT 752


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in a particular way. Copyright is available not in use of a red mug, but, in the manner the
mug is depicted in the artistic work of the author. It is not as if the plaintiff has used the
photograph of some cup available in the market. Here, the mug was designed by Mr Wolf-
rudi von der Emden in a unique shape. Putting a golden line around the mug also involves
some artistic work since it involves imagination and thought on the part of the
author/owner to use the golden line on the mug in such a manner so as to create a new
design by his work. Since, a mug can be designed and depicted in number of ways,
whenever it is designed and depicted in a unique manner in which it is not already
available in the market, it is difficult to dispute that this would qualify as an artistic work
within the meaning of Section 2(c) of Copyrights Act. In fact, the definition of artistic work
given in Section 2(c) of Copyrights Act makes it evident that a drawing would be
an artistic work irrespective of whether the work possesses any artistic quality or not.
Therefore, drawing and depicting a cup in a particular manner would be covered in the
definition of artistic work.’ Also it was said that “A drawing would be an artistic work
irrespective of whether the work possesses any artistic quality or not.” Also in the case of
Microfibres Inc. v. Girdhar and Co. and Anr.50 The honourable court very clearly stated
that ‘the definition of artistic work’ has a very wide connotation as it is not circumscribed
by any limitation of the work possessing any artistic quality. Even an abstract work, such
as a few lines or curves arbitrarily drawn would qualify as an artistic work. It may be two
dimensional or three dimensional. The artistic work may or may not have visual appeal.’

7. However in the case of work of architecture, copyright subsists only in the artistic
character & design and does not extend to processes or methods of construction [eg.
Section 13(5) of the Indian Copyright Act, 1957].

6.9 ENTITY IS BETTER OPTION AS COMPARED TO INDIVIDUALS

C opyright is ensuring certain minimum safeguards of the rights of authors over their
creations, thereby protecting and rewarding creativity. Copyrights are all about profit
sharing by the owner of the intellectual property. The object of copyright law is to
encourage authors, artists and composers to create original works and rewarding them with
exclusive right for a fixed period to reproduce the works for commercial exploitation. There is a
lot of confusion among entities what to do to get copyright protection? The first thing that any
entity should do is to understand what is a copyright and how does it work? This is important to
know anything and everything because it helps in taking necessary steps to secure the content of
the copyrighted 3D art. As, a little planning will save one from big headaches later. IPR’s are
there to be commercially exploitation. Even what the author is seeking is some rewards for his
work and not just moral recognition for his work.

An important concept to understand here is that an author and owner can be two different
people. Normally the author is the first owner of copyright. The author is either the creator of


50 2009 (40) PTC 519 (Del)


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the work or the person who employs someone to create the work. Many authors do not retain
their copyright ownership; they sell or transfer it to someone else in return for a lump sum
payment or periodic payment known as a royalty. In this way, the author and copyright owner
may be two different people.51

Copyright is one of a group of ‘intellectual property rights’. It gives the owner the right to control
the use of certain kinds of ‘work’ which are the result of the author’s skill or which have involved
an investment of time, effort and/or money by the owner. Obviously, the creator of the 3D art
should get some admiration or benefits for creating the 3D art form. But looking at a larger
picture it is better if an entity owns a copyright like in the case of cinematographic films. There
are several reasons behind the thought. Like:

1. If a copyright is given to an entity, it will pay a reasonable amount to the creator of 3D art
form. This will be equivalent to the time, skill and labour that the creator has put in to
create the 3D art form. In a way giving a copyright ownership to an entity would be
beneficial for both the entity and the creator of 3D art form. The entity will earn profit and
the creator of the 3D art form will get his share for the 3D creation.

2. In the modern world the development of a country depends on the country’s economic
status. The revenue generated per year plays a major role while calculating the economic
status. The revenue generation is done in a better way by an entity rather than an
individual. Therefore, giving a 3D art copyright ownership to an entity would result in
more revenue generation for the government and thus economic development of the
country. In the United States - one of the world's biggest sources of creative works like
movies, television shows, books, computer games, etc. -- this right to control your work
has actually turned into big business, but that's what allows all the creative people around
us to get paid for coming up with all the wonderful songs, shows, books, painting, movies
and other great works that we enjoy. 52

3. Under current laws, copyright protection starts from the moment of creation of the work
and continues until 70 years after the death of the author or artist. The entity would
protect the 3D art copyright for a longer period of time than an individual. If a question is
asked what is lifetime of an entity? There is no definite answer. An entity not being a real
person does not have a lifetime. The entity can stay for hundreds and thousands of years.
Therefore, the copyright will stay like forever.

4. If the 3D copyright protection is given to an entity the 3D art form would get better
protection as an intellectual property. As the entity would put the 3D art form as
commercial product. The entity would merchandise the copyrighted product.
For eg: A 3D superhero movie is made. The movie becomes a huge success. The
production house, which is also the copyright owner of 3D movie, decides to come
out with commercial products from the movie like 3D paintings from the movie scenes,
miniature figures of superhero, superhero and villian holograms, 3D photo frames etc.
Because of all the merchandise there comes 40% unexpected increase in the total
profits. Also, because of the merchandise the superhero from the movie became the


51 http://www.copyrightservice.co.uk/copyright/p01_uk_copyright_law
52 http://www.copyrightkids.org/cbasicsframes.htm


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trademark, getting trademark protection also. As a result every person who has a share
in the movie gets bonus. In turn benefitting everybody: the entity as well as the
individual minds involved in making the 3D movie.
In this case as the production house (an entity) had the copyright, therefore it became
very easy to come up the merchandise from the movie. This would have been difficult if
the copyrights were given to single individuals involved in making of 3D movie. Hence,
everyone’s interest was protected and balanced.
5. An important point is about the rights that would come with the ownership of the
copyright. Whenever an entity would buy the copyright as per current law it will get only
economic rights and not the moral rights, they would stay with the creator of the 3D art
form. This is a bit unacceptable. The simple idea of keeping the moral rights with the
creator is that he/she gets admiration for the creation, which is correct. What can be done
in easier way is that in the contract the creator should mention that he would get some
credit for his work and as far as respect is concerned when the entity pays the asked
amount to the creditor, in a way he is giving the required respect for his work. So, this
whole concept of moral rights should be cancelled, as it only complicates the whole
process. Doing this would not only protect the larger interest but also give a clear,
simplified and streamline method of 3D art copyright protection.

6.10 CHECKLIST WHILE ASKING FOR COPYRIGHT

T his section will deal with the specifications that a company needs in case of 6D to make
sure that it gets the copyright protection. A copyright allows the copyright holder to profit
from his work. While films are art, they are also big business. Studios want to make as
much money as they can from each movie and filmmaking is a multibillion dollar industry53. As
already mentioned that 6D technology is now majorly used in films, therefore the required
checklist are:

1. 54money for fees of registration
2. 55a copyright registration form from website (standard PA format).
3. There should be copies (hard copy and soft copy) and a description of the work being

registered.
4. The "best edition" of the film in soft copy format like in a CD or a pendrive.
5. The hard copy can be a written description of your movie like synopsis or press booklet

etc. The 6D effect is given with the help of cameras and computer graphics/Software’s.
Therefore, for the proof of 6D effect in hard copy the camera specifications, a sketch of
the way it was set to give the effect and computer codes used will be helpful.
6. Package the registration form, copyright fee and the copy of the film in a mailing
envelope and send to the proper address.



53 http://www.ehow.com/list_6187127_copyright-laws-short-films.html
54 http://www.ehow.com/how_2274486_copyright-film.html
55 http://www.ehow.com/how_2274486_copyright-film.html


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