The Concept of Originality in IPR- Through the Works of Duchamp and Dali in Mona-Lisa

A copyright is an exclusive right guaranteed to a person to reproduce, adapt, distribute or perform their original expression of an idea. It is important to note that a copyright is a statutory bundle of rights that arises with relation to the Copyright Act of 1957, in India. The essentials for a copyright include the minimum compulsory requirement for the work to be categorised as ‘protected’ under the Act, the work to be available in a material form and most importantly, the work must be original.[1]

Originality in the Indian context is a compulsory requisite for a copyright under Section 13(1) of the Copyright Act, 1957. However, the Act in itself fails to provide for a description or a test to gauge the measure of originality in a work. In the absence of any statutorily prescribed method of measurement, the process of testing originality becomes extremely difficult, especially in a derivative work. For example, the derivative works by two prominent artists- Marcel Duchamp and Salvador Dali who portrayed their versions of the Mona-Lisa with their own creativity and intent. The test of originality for their works, due to the lack of any statutory authority, must evolve through theories and cases that have dealt with these issues in the past.  

A derivative work is one that is based on a pre-existing work and includes the reproduction of art. The art, in the above example involves the renowned painting of Mona-Lisa, the original which in itself had no copyright and was in public domain. Therefore, the issue for consideration is whether the subsequent works of Duchamp and Dali are original enough for them to acquire any sort of copyright over their versions of the painting. A derivative work is also subject to a copyright, provided it is sufficiently original. The work may be based on another author’s work or may be based on a work in public domain. What is important is that the derived work should be creative in nature and should not be a mere copy of the original work. The copyright law does not prevent a person from taking necessary elements from an original work and adding their own inputs and creative elements to make certain improvements.[2] It is important to remember that originality is always defined with respect to expression and not with respect to the idea. In order to get a copyright, the necessity is an original expression and neither original thought or research holds significance.[3]

In India, the jurisprudence with regard to originality was initially based on the ‘Sweat of the Brow’ doctrine followed in the United Kingdom. This doctrine requires a minimum application of labour, skill and judgment for a work to be categorised as original, as held in Walter v. Lane.[4] If this doctrine were to be applicable in the Indian context today, serving as a low standard of originality, it would grant an original status to the works of the two concerned artists merely for their application of labour and skill of adding new elements to an already existing painting. The doctrine, before granting originality would fail to consider the degree of creativity and the intent behind the addition of such elements by the two artists and would even grant originality to a mere trivial variation if it included considerable labour and skill. The Supreme Court has rightly discarded ‘Sweat of the brow’ doctrine to give more importance to the degree of creativity in a work, thereby adopting the US method of ‘Modicum of creativity’ in order to grant originality. The doctrine came into force with the landmark case Eastern Book Company v. D.B. Modak[5], where the notion of “flavour of minimum requirement of creativity” was introduced as a requisite for originality. With regard to the standard of creativity, the doctrine requires some amount of creativity in the work, that need not be novel or non-obvious. The main reason for the need of minimal creativity is to ensure that trivial works are not granted copyrights on the basis of originality. In the present case, the creativity adopted by Duchamp is with regard to his concept of ready-mades, an art he made famous by taking existing objects and transforming them, by either adding to or changing them. This is visible through the addition of a moustache and a title to the original painting of Mona-Lisa indicating a pun with regard to women and their restlessness. The level of creativity, although minimal is not trivial in Duchamp’s work as there is an attempt to convey a message, although cheap and uncalled for. Therefore, his work, would qualify as an original in the Indian context. Salvador Dali’s work on the other hand is said to be inspired from Duchamp’s parody of the Mona-Lisa, through which he tries to create a portrait of himself. The creative elements in his version included the addition of his own moustache on the painting along with a few coins on Mona-Lisa’s hand that seemed to fulfil his objective of making a self-portrait. Through his painting, Dali tried to portray himself through Mona-Lisa through an idealisation which, in the Indian context would certainly qualify as minimal creativity that is required for a work to be original.

Therefore, the works of both Duchamp and Dali are original with regard to the doctrine of Modicum of creativity as they fulfil the requisite amounts of creativity that is required by law for a derivative work to be granted an original status.

[1] Section 13, Copyright Act, 1957.

[2] Kartar Singh Giani v. Ladha Singh, Air 1934 Lahore 777.

[3] Mishra Bandhu v. Shivratan, AIR 1970 MP 261

[4] (1900) AC 539

[5] (2008) 1 SCC 1

This Article is authored by Satvik Upadhya, Student of B.A. LL.B (Hons.) at Jindal Global Law School

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