The Delhi High Court recently directed insurance company Acko General Insurance to take down online content pertaining to a mural “Humanity”, in a copyright infringement suit filed by St+art India Foundation.
St+art India, which is involved in urban regeneration by incorporating artistic works to make urban cities and spaces more interesting and artistic, and Mexican artist Paola Delfin Gaytan who created the mural, claimed copyright in the mural (artistic work).
They claimed that in February this year, Acko had published a hoarding as part of its advertisement campaign ‘Welcome Change’ and had reproduced the entire mural for commercial benefit.
A single-judge bench of Justice Prathiba Singh, in its November 10 interim order, took note of Acko’s submission that it shall take down Instagram posts and any other online postings of the mural.
It thereafter said, “Accordingly, it is directed that the defendant shall take down the said listings within 72 hours. Specific URLs displaying the said mural on the defendant’s posts, if any, may also be communicated to the defendant by the plaintiffs. The above order shall be without prejudice to the rights and contentions of both parties.”
The court, however, said the interim order was passed after considering submissions by Acko, and the court had not made an opinion on the legal issues in the matter. The matter is next listed on February 2, 2024.
The plaintiffs had sent a legal notice to Acko to remove the hoarding and also take down related Instagram posts and other online media posts incorporating the plaintiff’s mural. Acko had responded to the notice claiming that “artistic work” is a mural “which is painted on a public building situated in a public place i.e. the Sassoon Docks in Mumbai”. They claimed that the use of the mural is fair use as it is permanently situated in a public place.
Before the HC, the plaintiffs’ counsel Dhruv Anand argued that Acko’s advertisement/hoarding and the Instagram page leave no doubt that the entire purpose was commercial in nature. He said that ‘Welcome Change’ is a tagline used by Acko to promote its own business, rather than a social impact movement or activity initiated by it.
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Acko’s counsel said there had been a resolution of disputes between the parties after which Acko did not expect any further litigation in this matter. He further said the hoarding had been removed.
Justice Singh, after hearing the parties, observed, “A perusal of the hoarding incorporating the said mural would reveal it is clearly an advertisement. The defendant has confirmed its removal, but it still continues to remain on online platforms. At this juncture, counsel for the defendant submits that his client is willing to take down any related social media listings, including on Instagram, Facebook etc”.
Justice Singh observed that there could not have been a presumption that the mural was a public domain work that could be used in the manner that Acko had done. The court, however, said that while the “use being for a commercial purpose” by Acko, the question of whether it qualifies as fair dealing or fair use would require examination.
