IP and Carnival

Feb 21, 2014

Introduction -

Copyright is a property right which subsists in literary and artistic works that are original. Photographs and Photographic works are protected under the Copyright Act.

Rights of the photographer -

Original works, means works where some skill, judgment and or labour was used in the creation of the work. Since the photographer must exercise some skill in the taking of photographs, photographic works are therefore protected.

Ownership of photographs -

The following should be noted:

1. The original owner of the copyright is the creator/author who has created the work. Therefore the photographer who has taken the photograph is the original owner of copyright in the work.

2. Where a photographer takes photographs during the course of employment, the copyright in the photograph belongs to the employer.

3. There are no general provisions in the Copyright Act relating to the commissioning of works, in other words, contracting someone to do work for you which is not long term employment. Persons and entities should disabuse themselves of the notion that if they have contracted someone to create works, for example a photographic work, that they would automatically own the copyright. The parties should make it quite clear in the terms of their business who should own the Copyright in the work.

4. If a photographer takes a picture of someone in a carnival costume at the mas camp for instance, that person does not own the photograph, the photographer does.

5. The person may be able to negotiate to get an electronic version or print but that does not equate to ownership of the intellectual property unless there is an assignment of the copyright in writing from the photographer to the person, signed by the photographer.

Image rights -

In Trinidad and Tobago, there are no specific laws that deal with image rights and the use of an individual’s image. At the same time, it should be noted that a person has the right to respect for his private and family life. For instance, someone goes into the home of another and takes a photograph of the home owner and then wishes to exploit it for financial gain.

1. One question which is commonly asked around carnival time is whether masqueraders can take photographs of themselves and others and what happens if other people take photographs of the masqueraders. Where an individual is in a public place, there is no legal requirement that the individual’s permission should be obtained prior to taking the photograph.

2. If during carnival, a masquerader’s image appears in a carnival compilation through an accredited photographer (in other words, a photographer who has paid to take photographs for the carnival route) then there is not much the masquerader can do to object, as the photograph was taken by an accredited photographer in a public place.

3. Masqueraders can freely share photographs that they take themselves, provided it is for non-commercial purposes.

4. If the photograph is for commercial purposes and is taken along the Carnival route the person must be accredited.

5. In relation to celebrities and well known individuals such as famous entertainers/ sportspersons, the protection of their images in Trinidad and Tobago is dealt with through the application of various laws such as passing-off, defamation, malicious falsehood, registered trademarks, contract, and tort, such as the tort of deceit. Therefore, where a photograph contains the image of a celebrity or sportsperson, the celebrity or sportsperson’s permission must be obtained to use the image commercially.

 

 

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All rights reserved.

Criminal penalties for Intellectual Property Rights Infringement

IPR

Maximum Penalty (TT Dollars)

Copyright and Related Rights incl. databases

$250,000.00 or ten years imprisonment (summary conviction)

Topography of Integrated Circuits

$10,000.00 or 5 years imprisonment (summary conviction)

Trade Mark (incl. company names represented in a special or particular manner)

$10,000.00 or 6 months imprisonment (summary conviction); $40,000.00 or 10 years imprisonment (indictment)

Industrial Design

$10,000.00 or ten years imprisonment (summary conviction)

Patent and Utility Model

$10,000.00 (summary conviction).

Falsification of patent register: $20,000.00 (summary conviction) or $40,000.00 or ten years imprisonment (indictment)

Geographical Indications

$8,000.00 or three years imprisonment (summary conviction)

Plant Variety

$10,000.00 (summary conviction)

Unauthorised claim of patent rights

$10,000.00 (summary conviction)

Unauthorised claim that a patent has been applied for

$10,000.00 (summary conviction)


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The Copyright Infringement Ship

Piracy Ship

Click here to download image.

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Piracy

Piracy occurs when any of the copyright owner’s exclusive rights are violated.

Note 14 of the TRIPS Agreement on Trade Related Aspects of Intellectual Property Rights (IPRs) provides the following interpretation:

(a) “counterfeit trademark goods” shall mean any goods, including packaging, bearing without authorization a trademark which is identical to the trademark validly registered in respect of such goods, or which cannot be distinguished in its essential aspects from such a trademark, and which thereby infringes the rights of the owner of the trademark in question under the law of the country of importation;

(b) “pirated copyright goods” shall mean any goods which are copies made without the consent of the right holder or person duly authorized by the right holder in the country of production and which are made directly or indirectly from an article where the making of that copy would have constituted an infringement of a copyright or a related right under the law of the country of importation.

The maximum penalty for copyright infringement is $250,000 or ten years imprisonment. The above pirate ship illustrates some common examples of piracy.


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