This article is written by Tripti M Kumar, pursuing Diploma in Intellectual Property, Media and Entertainment Laws from LawSikho.
One would think what has henna got to do anything with copyright? A lot of us are guilty of googling “henna designs” and cloning a design as is on our hands. Has legality ever crossed your mind? Is henna just like any other form of art copyrightable? The rise of intellectual property in India has opened a whole new spectrum of protecting one’s personal property, and to look at henna as intellectual property is possible.
Through this article, we’re going to discuss the constitutionality of henna, especially from the perspective of a henna artist who is looking to get some information on how henna can be intellectual property. We will discuss various aspects of henna and how it fits in perfect boxes for intellectual property.
Henna and copyright
Henna, popularly known as mehndi, is a form of body art. A thick brown paste made up of herbs is filled in a cone which is then used to make temporary tattoo-like designs on the body, mainly the palm of our hands. India, as a community, has long seen the use of henna in its culture. The ritual of mehndi is an integral part of Hindu marriages and other functions. So just like any other art form shouldn’t henna also be included under the preview of copyrightable works?
Artistic work under the Act is defined in Section 2(c) as “artistic work” means; (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 1 [work of architecture]; and (iii) any other work of artistic craftsmanship.
For something to be considered as artistic work, it need not be considered art to the naked eye, or even to the realm of artists. For a work to be considered as an artistic work, it has to be original, meaning it has come from the artist himself.
One can say that artistic work is a creation by a person or anything made by an artist, which is brought into existence using one’s artistic abilities and skill.
The Government of India through a Manual has attempted to protect these artistic works from being illegally exploited and from being infringed. It says defining artistic work “Copyright shall subsist in any original artistic work consisting of paintings, sculptures, graphics, cartoons, etchings, lithographs, photography, drawings, plans, maps, diagrams, charts, buildings, models of buildings, moulds and casts for sculptures.”
Henna as an artistic work
Henna can be segregated into types, some artists prefer making henna patterns that are famously used and some make designs that are unique and are a result of their creativity. Henna designs can be broken down into elements; some are timeless and generic, others are more unique. Some artists have unique styles, while others have relatively ordinary designs, with some unique elements they invented. What will be considered as an infringement is when a person has copied/ made a design similar to that of the original artist.
You automatically own the copyright to all original henna works, patterns, and photos. Your original work is your property and you do not need to officially register your work to own it. If it’s your work, the moment you “express” it, it’s copyright! If you have an idea, but don’t show it, you cannot simply claim copyright by having an “idea” first. You own the copyright only after the expression of your idea.
A manual describing the Practice And Procedure has been created by the government for ease of process and understanding.
Fundamentals of copyright and how it applies to henna
Copyright and copyright infringement
The copyright is created at the moment the work is created. However, from an application point of view, registration is usually the first choice. Without registration, a third party can claim that the specific work the company or individual is using was created by the third party earlier. If a person without the authorization of the author performs an act that only the author/owner has the right to perform, such as unauthorized copying, distribution of copies, public performances, broadcasting, adaptations, etc., is an infringement.
In the case of henna, although there are not many known cases of henna designs being copyrighted, henna proprietors do register their IP in the form of the brand, logo, packaging etc.
Difference between public record and public domain
Contents of a public domain are in fact protected by copyright laws since it is a type of creative work. An example of public domain information can be a statement given by a celebrity over an interview or a podcast. Whereas the contents of public records cannot be copyrighted since it is verified and true information about such a person.
A lot of us often come by beautiful henna designs on social media, which is often shared by the artist to promote oneself. Social media is great cheap advertising. When it’s done right! A single share by a friend as a Facebook post will help gain more attention and attract users. But people have to remember that posting to Facebook is implied consent to share, NOT the surrender of rights. So even if the artist has shared pictures on their social media it still is the content of public domain and not public record and copying such work can attract an infringement suit.
The use of copyrighted works for specific purposes is permitted by copyright law and will not cause infringement clauses. This is called fair use or fair dealing. Section 52 of the Copyright Law lists 31 exceptions. The following are factors to consider when determining fair use: purpose and characteristics of the use, including whether such use is commercial in nature or used for non-profit educational purposes; the nature of the copyrighted works; and all copyrights. Work the number and materiality of related wearing parts; and the impact of the use on the potential market or value of copyrighted works.
Henna and Design Act, 2000
The objective of the Design Act, 2000 is to protect designs so created to be applied to a particular article to be manufactured by Industrial Process or means. Sometimes purchased items are not only affected by their actual use efficiency, but also by their appearance. The important purpose of design Registration is to see that the artisans, creators, originators of a design having aesthetic look are not deprived of their bonafide reward by others applying it to their goods. Section 2(d) says ‘design’ means only the features of the shape, configuration, pattern or ornament or composition of lines or colour applied to any article whether in two dimensional or three dimensional or in both forms, by any industrial process or means, whether manual, mechanical or chemical, separate or combined, which in the finished article appeal to and are judged solely by the eye. One of the exceptions of this clause is that it shouldn’t be artistic work as defined under the Copyright Act, 1957.
So if talking in the context of henna, a proprietor who has a business of henna stencils or henna sticker tattoo can get it registered under the Designs Act as it involves an industrial process. A henna artist on the other hand probably does not have much scope to get their designs registered under the Act.
Other components of henna and intellectual property
We have talked about henna as an artistic work and how the provisions for copyright work on it. But there are other aspects of henna that are considered intellectual property as well.
1. Henna ingredients
Henna ingredients that are the elements that ultimately make the dark brown paste that is used to stain the hands have been a part of South Asian countries and Arabic countries for centuries. The dark brown paste is not only a long used recipe, it is one that has been passed down from generations in some families. Although henna is widely used and known among cultures, it is one of the Trade secrets that can be registered. Trade secrets are enforced through Contract Law (principles of equity or by way of a common-law action for breach of confidence) since there is no statute or legislation for a trade secret to being enforced in India yet.
2. Henna cone and packaging
There are a lot of different types of henna cones out there like mehndi cones, organic henna cones, DIY cones, ayurvedic cones etc. These packaging techniques can be patented and be given out licenses for;
Henna brand logo; any product in the market needs an identity, which is the logo on the package. The same goes for henna; it needs a logo representing a brand. Logos are protected under the Trade Marks Act, 1999.
Ways to protect henna art from being infringed or exploited
1. Registering your henna design
This is the first step to protecting the henna design. Although it is not commonly heard about, the Indian Government has made provisions for artists who wish to protect their artwork. The registration can be through a form sent to the registrar of copyrights or an online application (here). Once you have registered your design under the copyright system, you have the power an artist needs to protect their work from being illegally exploited.
Adding watermarks to one’s work is another preventative method of protecting your art. A watermark is a logo or name that is placed on top of an image. Watermarks credit you as the artist of your image and it is very difficult for anyone to remove/change this. So if you as an Artist were to upload a photograph of your henna design, try adding a watermark to the same. You get various computer or mobile applications that do the job for you.
3. Keeping digital records
The digital library that owns your artwork will save you a lot of trouble in case of copyright infringement because you can show this record in court. Even without registration, there is an easy way to prove that you own the image. If your copy of the image was created before the stolen image, prove ownership. The digital camera adds data to your images to show their creation date. Another method is to mail the printed image to yourself and not open it when you arrive. The image sealed in the envelope with the postmark may indicate that you owned the image before anyone else.
4. Cease and desist
With reference to the infringing material on the internet, which is very common in the case of user-generated content on websites and social media, a person has an option to write “intermediary” requesting it to remove the infringing content from its website. The intermediary is required under Copyright Act and associated Rules to remove such content within 36 hours of receiving the request. So if you come by any work that you might think is the illegal exploitation of your work or of someone you know, take action against it. In the case of MySpace Inc v Super Cassettes Industries, FAO(OS) 540/2011, C.M. APPL.20174/2011, 13919 & 17996/2015, after the plaintiff (“Super Cassettes” or “SCIL”) requested a temporary injunction, the appellant (“MySpace”) was prohibited from hosting all SCIL work on its website, including future work. SCIL’s lawsuit then required a permanent court order prohibiting Myspace from infringing and using its intellectual property rights, primarily its copyrights in films, sound recordings, literary and musical works, and causing harm to such use. After the court asked the plaintiff to provide “specific” work in which it holds copyright along with the location/ URL of such work on the appellant’s website, Myspace was ordered to remove/ block access to such content within 36hrs, in accordance with Rule 3 (4) of the Intermediary Guidelines Rules of 2011.
Even though copyrighting henna seems dispensable and uncommon, an artist should strive to own anything that has come out of his creativity, hard work and skill. As the western world is being swayed by South Asian Culture, it has become essential for individual artists to hold ground and protect what is rightfully and culturally theirs. It is true that a piece of art becomes protected under copyright from the time it is made, but that protection remains limited and can be questioned. To gain full immunity one should consider registering it as copyright as well, only then does the creator get the exclusive right to distribute, publish, perform or display their work etc. Henna, like any other art form, deserves recognition and protection from illegal exploitation so it can grow worldwide as an art form.
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