Most people have heard the phrase 'Pujor Gondho
' (meaning the essence of puja),
and every Bengali (like me) can vouch for the fact that it is as real as the
fact that the earth revolves around the sun. The moment sharat (autumn) seeps
in, every Sarbojonin (colony) of mostly West Bengal, Tripura and Assam, gets
their skilled artisans on board to create life-size replicas of themes both
sacred and profane:
Dakshineshwar Temple, Burj Khalifa, Titanic, Covid-19 and
the list is endless. Though temporary in nature, these pandals reflect immense
artistry skills. It might be an interesting endeavor to view these pandals
through the lenses of intellectual property rights- meaning does these pandals
enjoy copyright protection, or more interestingly since they reflect already
'existing works/themes', can they be held accountable for copyright
Intellectual property can be ascertained on any asset or creation produced in an
intangible form, which is the outcome of any human being's creative mind. Such
expression of creative and original thought which can be categorized as
literary, artistic, or dramatic work is brought under the Copyright Law. In
essence and in practice, it translates to the fact that the law vests exclusive
rights on the authors/creators of any literary, artistic, or dramatic work
against 'any duplication or reproduction' of their work, 'regardless of the
uniqueness or artistic impression of the work in question'.[ii]
In the Indian context, the Copyright Act of 1957[iii], (hereinafter referred to
as "the Act"), stipulates the legal rules and principles governing the
protection of original expression of ideas, not conferring to only traditional
modes of production, reproduction, or distribution, but also extends itself to
literary, artistic, and dramatic work.
However, the point of contention arises
with the fact that with the fast-developing world, new forms of artistic
expressions are ever evolving- be it sand-art, ice sculptors or the puja pandals.
The legal framework, as it stands today, paves the way for a dichotomy in
relation to the protection of such newly forms of artwork.
While the traditional interpretation of art, to a great extent, proffers to an
idea of 'permanence' or 'tangibility', which includes the lyrics of a famous
song that we keep humming all day or our favourite childhood cartoon character
that we longed to watch after coming back from school-all of them enjoys
Nonetheless, with an ever-progressing world, human
intellectual and creativity introduces various forms of art which are mostly
brought under the concept of transience in time and are not permanent or
conservable in nature-like the Padma Shri Award winning sand art by Sudarshan
Pattnaik on the Puri beach[iv], the Ice Sculpture Association of Ladakh[v],
multiple award-winning Calcutta' Baghbazar Sarbojonin's 'Vatican City-themed'
puja pandal[vi], and many alike.
These impermanent forms of art being are
usually characterized as the 'ephemeral art', since they are transitory in
nature and cease to vanish after the moment for which they were ideated passes.
The only non-transient component attached that can be attached to them is
Ephemeral Art and the Legal Understanding
Having being illustrated the idea of ephemeral art, and parallelly reading the
statutory provisions of the Act, it can be advanced that such impermanent
artistic work may naturally be brought under the ambit of the copyright act.
'Work' as is defined in Section 2(y) is defined as 'a literary, dramatic, music,
artistic work, cinematograph film, or a sound recording.'[vii] Further,
'artistic work' also finds its meaning within Section 2(c) which reads:
- 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
- a [work of architecture]; and
- any other work of artistic craftsmanship.'[viii]
It is in this light of these rules, it can be interpreted that impermanent work,
or more specifically, puja pandals can be inferred to be artistic work, as the
definition of artistic work is comprehensive and descriptive in nature, and is
not restricted to sculptures, cartoons, drawings, maps, etc. Puja pandals being
an antithesis of permanence of creation, needs to be analysed with respect to
'fixation' in law.
Legislatively, any work as defined in the Act, which is
'original' and 'tangible' in nature, may classify to be copyrightable,
notwithstanding the fact if it is artistic in nature. This concept of fixation
can be traced to the Berne Convention [ix] and the Rome Convention.[x]
reading of Article 2(2) of the Berne Convention suggests that for fixation to be
a prerequisite for any work to be eligible for copyright protection, should be a
matter to be decided by the municipal legislation of the signatory states.
interpretation of the Indian Copyright Act on fixation can be argued to be in
consonance with Berne Convention, as was in the case of MRF Ltd. v. Metro Tyres
.[xi]. Consequently, in the case of Emergent Genetics India (P) Ltd. v. Shailendra Shivam
, the court specifically ruled that in India, fixation is not a
prerequisite for a work to qualify for copyright protection.[xii]
certain other countries like the United Kingdom and United States of America,
does rule out that copyright does not subsists in an artistic work unless it is
recorded in writing or other such forms.[xiii] It further mandates that such a
recording must be sufficiently permanent to last more than just the transitory
Therefore, prima facie and has been enunciated above, puja pandals stands to be
qualified for copyright protections. However, a fundamental contention arises in
this regard, since there is a grey area of law wherein neither the statutory
provisions nor any judicial precedence, to this day clearly fails to decide if
impermanent work that lacks in fixation in a tangible manner shall qualify for
copyright protection or not. It is only with respect to dramatic work, that the
Act has mandated fixation as a prerequisite. [xv] Certainly, a puja pandal.
Howsoever, cannot be classified as dramatic work.
Subsequently, a further reading of section 14(c) of the Act, that deals with the
scope of copyright for artistic work, allows 'reproduction of the work in
material form, which includes storing and depiction, communication of the work,
issuance of copies, inclusion in cinematograph films, adaptations of work,
While the prima facie coverage and as per the analysis above,
fixation in tangible form is not a mandatory requirement for impermanent
artistic work to acquire copyright right protection, however, the abovementioned
section does lay down a mandate for a material form of expression of the
artistic work. [xvii]
Analysing the section further, I intend to interpret that
the puja pandals, notwithstanding its transience nature, is a material form of
expression and therefore, qualifies the requirement envisaged in Section 14(c).
An illustration to better understand this situation is- hypothetically
Calcutta's Sreebhumi Sarbojonin decides to repeat its Burj Khalifa themed pandal
next year too.
Since every year after the end of Puja, the pandals are taken
down, it will hence require a renewal/ reconstruction by the artisans again next
year. By that understanding, it will fulfil both the criteria's of 'reproduction
in material form' as well as the 'tangibility' arena. But the contestation
ceases to persist, for neither the statutes nor the judiciary has proffered any
explanation that discusses the scope of permanence nature of artwork-either in
material fixation or with regards to tangibility.
In the absence of any specific legislative coverage for providing copyright to
impermanent work, the law must first recognise the scope of existence of
copyright in impermanent work and by that argument, it must explicitly include
impermanent work within its meaning of 'artistic work'.
While certain artists
may benefit from the said proposition, as that would enable them for licensing
their work either voluntarily [xviii] or compulsorily [xix] thereby holding room
for licensing their work for commercial purposes, I am of the opinion that
certain ephemeral art like the puja pandals must be kept outside the ambit of
copyright protection lest it may create an ambiguous situation.
In saying so,
what I intend to convey is that, say hypothetically ten years down the lane, a
xyz Sarbojonin in Assam decides to have a Burj Khalifa themed pandal and later
is sued by Calcutta's Sreebhumi, for the latter has already themed a similar
pandal, especially when none of these Puja committees constructs these pandals
for any commercial purposes. It would be as bizzare as to say that no one can
feature their sketch of Burj Khalifa on Instagram, because someone has already
posted a similar sketch on their profile before them, and the principle of 'fair
use' may also be invoked here.
Can the Original Authors of the 'Themes' Sue for Copyright Infringement?
Another interesting aspect to analyse is that whether the original owners of the
theme can hold the puja committees liable for copyright infringement, since they
are producing replicas of their properties? Meaning, can Emaar Properties sue
Sreebhumi Sarbojonin for having a Burj Khalifa themed pandal? In answering this
question, looking at the doctrine of the idea-expression dichotomy, as was laid
down in the R.G. Anand case[xx], it may appear on the surface that such puja
pandals are liable for copyright infringement.
A similar situation did arise,
when J.K. Rowling and Warner Brothers filed a petition of copyright infringement
against a puja committee organizer of Calcutta's Salt Lake, for replicating the
Hogwarts Castle as their pandal that year. [xxi]
While the Delhi Court dismissed
the petition, however it directed the puja committee to submit an undertaking
that it shall make no further use of the characters once the puja is over and
that any such use of any character from Rowling's book in future would require
prior permission from the author.
The Court's sentiment is clearly evident that
such replicas or themes does attract copyright infringement as Justice Kaul
"…(organisers) in future to model their pandals on any of the subject
matter only with the leave and liberty of the authors". [xxii]
I am not sure if Emaar Houses have sued Sreebhumi Sarbojonin for copyright infringement neither
did James Cameron sue the Bagha Jatin Sarbojonin for replicating the sinking
While it is evident that to sue or not such puja committees for
breach of copyright, depends entirely on the respective authors, I am of the
opinion that since the Sarbojonin is a group of people from a colony who collect
funds from the people of that very colony for constructing the pandal marquee
and fund for all the rituals, without any commercial benefit, they may be held
as an exception to the law.
I fail to see any difference between these themed-pandals
and a father hosting a Harry Potter-themed birthday party for his children.
Though it would be bizarre, but by that argument, every father must seek prior
permission from J.K. Rowling before hosting such parties.
For the lack of any statutory provision and judicial precedents, there lies a
lacuna in the law with respect to subsisting copyright protection in various
forms of ephemeral art. While such forms of impermanent art may be a recent
development, albeit historically propagating phenomenon,[xxiii] it is clear from
the arguments above that the legislative and judicial intent is to prioritise
expression over other attributes.
Thus, there is a need for an urgent holistic understanding of the matter by the
law makers to mitigate the existing lacuna and meanwhile, on the basis of the
interpretation of the existing provisions, as enunciated above, ephemeral art
may 'manage' to enjoy copyright protection but in a limited sense. I also hope
that certain forms of impermanent art like the puja pandals may be treated as an
exception while deciding on the matter.
- Shakespeare, William, 1564-1616 author. The Tragedy of Hamlet, Prince of
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- Kaul Apoorva. "Earth Day: Sudarsan Pattnaik Makes Beautiful Sand Art To
Spread Message About Environment", 2022, https://www.republicworld.com/entertainment-news/whats-viral/earth-day-sudarsan-pattnaik-
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The Week, 2022, https://www.theweek.in/theweek/leisure/2022/03/06/artists-in-ladakh-are-dreaming-and-carving-alchemies-in-
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- Art. 2(2), Berne Convention, (1971)
- Rome Convention, Secretary-General of the United Nations, 496 U.N.T.S 43.
- MRF Ltd. v. Metro Tyres Ltd., (2019) 79 PTC 368.
- Emergent Genetics India (P) Ltd. v. Shailendra Shivam ,(2011) 125 DRJ 173.
- Verkey. Intellectual Property: Law and Practice. Eastern Book Company,
- Geiger, Christophe, and Elena Izyumenko. "Freedom of Expression as an
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- S.2(h), The Copyright Act, No.14, Act of Parliament, (1957).
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- RG Anand v Delux Films AIR 1978 SC 1613.
- Chandrasekharan, Sumathi. "Potter-troubles Over for Puja Organisers."
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- Fontaine, Nancy. "Impermanent Art." Dartmouth, 21 Oct. 2022, home.dartmouth.edu/news/2011/02/impermanent-art.