ArtbySehgal and Copyright Infringement

The content hereunder constitutes Fair Use (reporting and review) under Section 52 of the Copyright Act, 1957.


Background

Established Delhi-based contemporary artist Abhay Sehgal (artbysehgal on Instagram) has recently come under fire for incorporating replicas of other artists' works into his own. Comparisons posted by artists hold undeniable proof of this, as was seen in this post by Krishna Bala Shenoi. This was followed by a plethora of artists from the community posting their own versions-- spotting their artworks in Abhay's works (#FindYourOwnArtwork). We have also seen undeniable proof of AI usage in his works, which will be addressed in the coming post.

Copyright Infringement

Copyright law is mainly governed by the Copyright Act of 1957 ('the Act') (as well as the 2012 Amendment, the 2023 Amendment and the Copyright Rules). Copyright infringement occurs when a party infringes upon another party's copyrights. The copyrights ('rights to copy'; essentially ownership rights-- detailed under Section 14) awarded to authors, licensees/ assignees, and owners are to:
  1. materially reproduce the artwork 
  2. communicate the artwork to the public
  3. issue copies of the artwork to the public, not being copies already in circulation
  4. include the artwork in a cinematograph film
  5. make adaptations of the artwork
These rights are awarded exclusively to the authors, first owners, as well as parties having licensed or later owned the artwork.
  • The artist behind an artwork is deemed the author of the work (Section 2[d][iii]). 
  • Normally, the author is the first owner of an artwork unless created under employment, commission, or for the purposes of publishing, which makes the employer/ client/ publisher the first owner (Section 17).
  • Licensing an artwork entails the owner of the work transferring limited ownership rights for a limited period (Section 30). Assigning an artwork entails the owner of the copyright transferring limited or all ownership rights permanently (Section 18).
For infringement to occur (Section 51), the conditions are:
  1. When a person, without a licence, or going against the conditions of a licence, or of any condition imposed by an authority,
  2. does anything, the right to do which is only for the owner of the copyright, or
  3. permits for profit any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright, unless they were not aware, or
  4. when any person makes for sale or hire, or sells or lets for hire, or offers for sale or hire, or distributes either for the purpose of business or to such an extent as to prejudicially affect the owner of the copyright, or by way of exhibits in public, or imports into India any infringing copies of the work.
  5. Additionally, the unsound reproduction of an artistic work in the form of a cinematograph film shall be deemed to be an infringing copy.
Abhay has likely infringed upon multiple copyrights:
  • He materially produced the replicas by hand, onto paintings and prints, which he sells to collectors and buyers for hefty amounts.
  • There is an added layer, as his infringing paintings are later printed onto his products at his company Codebrwn, which he further monetarily and materially benefits from. Section 69 of the Act specifically talks of infringement by companies. Furthermore, he causes likely infringing copies to be made, sold, and offered for sale via Codebrwn.
  • Additionally, he has communicated and displayed the infringing works online as well as in his exhibitions throughout the span of a few years, amassing the following he has today. 
Abhay has studied at the School of the Art Institute of Chicago, has sold his paintings to celebrities, has collaborated with brands like Prada, Coca-Cola, and TATA, and has essentially been a leading figure in the Indian art scene over the past years. With such repute, it is unpleasant to see an established individual essentially robbing opportunities and compensation from the artists he steals from, who are less privileged, less established, and have lesser reach-- this ought to be considered as exploitation, given the extent and prolonged infringement.

Remedies

Remedies found under Chapter XII (civil) and XIII (criminal) of the Act deal with solutions for the rightful owners of the copyright to regain their rights against infringers. Copyright owners may institute a declaratory suit, with remedies like:
  1. Injunctions
  2. Damages
  3. Account of Profits
  4. Delivery Up
  5. Delivery and Destruction
  6. Specific Performance
  7. For first-time offenders, 6 months to 3 years imprisonment, 50K INR to 3L INR fine (if infringement is NOT benefitting business, upto 6 months imprisonment with upto 50K INR fine)
  8. For repeat offenders, 1 to 3 years imprisonment with 1L INR to 2L INR fine (if infringement is NOT benefitting business, upto 1 year imprisonment with upto 1L INR fine)
Any police officer, ranked subinspector and above, may seize without warrant, copies of the work, and all plates used for the purposes of making infringing copies of the work, and all copies and plates so seized shall be produced before a Magistrate.

Important to note, individuals circumventing technological measures protecting copyrights (like watermarks and embedded information), with the intention of infringing copyright, shall be punishable with imprisonment which may extend to 2 years and shall also be liable to fine.

Why Remedies Matter

The first reason right off the bat, given this scenario, is to stop the exploitation faced by smaller entities in the face of larger entities using their works without permission. Abhay is a well-established artist exploiting the works of smaller creators whilst economically profiting from the same, and this mustn't be tolerated.

  • Remedies incentivize creators to produce new works. The assurance of protection and the possibility of redress foster an environment conducive to innovation and cultural enrichment.
  • Copyright law also considers public interests. Fair dealing allows limited use of copyrighted works without permission for purposes such as research, criticism, or news reporting, ensuring that public access to knowledge is not unduly restricted.
  • The availability of remedies ensures that creators receive fair compensation for the use of their works and that infringers are held accountable.


Remedies against infringement are vital for maintaining fairness in the creative economy. Such remedies can ensure that established artists are held accountable for acts that exploit lesser-known artists and distort the ethics of authorship. These legal protections reaffirm that recognition and reward must rightfully belong to those who create, not those who replicate.