Now, clicking photos of Mumbai's Taj Mahal Palace Hotel will come at a price

IllustrationUday MohitePicture this Its early one rainy morning The grey sky is yet to reflect the colour of the sun You are standing near the Gateway of India against the regal backdrop of the Taj Mahal Palace Hotel when you have a chance encounter a spectrum of light flashing across the redtiled Florentine Gothic dome of the Taj Its an irresistible vision begging to be arrested on camera and breathtaking enough for the world to see You do your part and freeze the moment The rarity of the image makes it a prize catch If you arent someone who takes fancy to social media distributing the photograph to media houses would have been a fine move to earn a quick buck But that would have been the case until a week ago Now theres a middleman involved And the laborious process might just put you off so bad that you are quite likely to open a new Instagram account and share the picture there insteadEarlier this week the 114yearold iconic Taj hotel in Colaba became the first building in the country to receive a trademark registration under the Indian Trademarks Act of 1999 That means the image of the main dome of the Taj Mahal Palace can no longer be commercially reproduced without prior permission from the Indian Hotels Company Ltd IHCL which owns the Taj Any violation can constitute infringement of Tajs intellectual property rights and registered trademarksPicGetty Images ImagingRavi JadhavIn laymans terms the image of the landmark structure cannot be depicted in memorabilia such as postcards posters Tshirts etc or movies and photographs and artworks on sale unless permission has been granted The hotel is a valuable intellectual property says Rajendra Misra senior vicepresident general counsel Taj Hotels Palaces Resorts Safaris We felt strongly about protecting and bringing forth the distinctiveness of this most recognised building in India says Misra when explaining the reason behind the unusual moveBut like all things first the ambiguity surrounding the trademark is so high that it has already raised concerns among the legal and art community Though a private property the Taj hotel is very much part of the collective consciousness of Mumbai and an irreplaceable emblem of the citys landscape Hence as valid as the argument of protecting its intellectual property is so is the debate around whether cultural landmarks should come under the ambit of such a law And if yes where should one draw the lineGarima Gupta has incorporated several landmark structures of the city in her artworksProtecting a brandWhile registering of buildings under the trademark law was previously unheard of in India it is commonplace in the West Taj has now joined an elite trademark club which includes the Empire State Building in New York City the Opera House in Sydney and Eiffel Tower in Paris A trademark is a mark that distinguishes the goods or services of one individual from those of others It mostly includes brand names shapes packaging or a combination of colours says Devika Agarwal a research fellow at Centre for WTO Studies Indian Institute of Foreign Trade One of the major functions of a trademark is to act as an indicator of the source of the product or service she adds That purpose she argues is already served under the Indian Copyright Act In fact as per the law copyright comes into existence the moment you create something It doesnt even need to be registered So Taj already has a copyright for its building says Devika The one advantage of having a trademark over a copyright is the fair use provision in the latter which allows third parties to use the image for research publication and educational purposes Trademark will make it difficult for others to defend fair use she saysGarima GuptaIn trademarking the structure Taj wants to protect the recall value of its structure associated with them and their service says advocate Dipak Parmar founder of Cyber IPR When somebody uses the image of Tajs structure to promote its services and that service is not at par with what the hotel is providing it could lead to erosion of its brand valueKiran Desai partner at Indian Law Partners points out that an image of the structure has been registered by the Indian Hotels Company Limited under Class 43 of the Trade Marks Act 1999 which prevents third party use of it in respect to hospitality services So if youre a restaurant owner or a hotel and you have used the trademarked image of the Taj to promote your business then it would make sense for the Taj to impose restrictionsArjun CharanjivaIs Taj overreachingThe IHCL has categorically stated that henceforth use of Tajs images for commercial purpose or even for any media purpose would require permission and payment of a licensing fee In case anybody wishes to use these images in their work we are open to discuss granting license provided such use is commensurate with the reputation and goodwill of the hotel Misra saysDesai however feels that Taj is overreaching by claiming entitlement over images for purposes beyond the industry in this case hospitality under which the trade mark has been registered Personally I dont believe they can stop people creating artistic works which contain the Taj They need to come out and clarify their stance on the issue he saysWhen you think of trademarks you usually associate it with brands or logos While registration of buildings is not expressly prohibited I doubt that the Indian trademark law anticipated something like this It would be too soon to comment on how one would work under such a framework says Agarwal But IHCL is confident of having put together a strong case for itself Its a pioneering effort in that direction and I am sure it will lead to more initiatives of this nature says MisraIn the US however the ambiguity around trademark registration of buildings is slowly vanishing Following several landmark judgments see box new ground rules have been laid One does not need permission to take photographs or use artworks if trademarked buildings are reproduced as part of the larger cityscape says Washington DCbased lawyer Joshua J Kaufman who oversees art copyright amp licensing practices at Venable LLP If I had to take a photograph at Times Square in New York there would be a thousand trademarks in my picture You think Id need permission from every hotel brand or store there obviously not As per the US law if the image is part of a landscape or is being used by a media publication you could go ahead says Kaufman over a telephonic interviewAs part of the trademark policy of Eiffel Tower in Paris there is restriction on use of images of the structure taken at nighttime PICGETTY IMAGESUnfeasible and impracticalNeedless to say the art fraternity is taken aback by Tajs decision with many arguing that this move would only hamper creative freedom I think they are being too selfimportant by trademarking the building says Krunal Palande video graphic artist and founder of Nook and Cranny Films which makes shorts inspired from key landmarks in Mumbai They might have inherited the property but the architecture of this building is a part of the IndoSaracenic culture The architects themselves were clearly influenced by the likes of FW Stevens The building is symbolic to the city and the owners may have complete authority over its physical domain but do they have ownership on its cultural value Perhaps thats a question they should ask themselves he addsSanjay Chaddha who runs the iconic 100yearold Indian Art Studio at Kalbadevi along with his brothers shares similar sentiments Taj is an iconic structure and is synonymous with the city The hotel should in fact be encouraging people to take photographs of the building so that the world sees more of this placeJoshua J KaufmanGarima Gupta who has incorporated several vestiges and structures of the city in her artworks in the Project Bambai series hopes that the hotel will eventually come around Taj is the most photographed structure in the city and is also a widely used image I cant imagine being asked to pay money to use it in my work Its a shortsighted move on their partNot everyone however feels that way Arjun Charanjiva founder of Kulture Shop which sells premium lifestyle products by leading Indian graphic artists says If its is a private building with unique architecture and some sort of investment has gone into building it then I would imagine that any such claim for trademark rights could be seen as legitimate But Taj is in a unique situation because the structure is treated as an icon of the city or even a monumentThe irony has been aptly reflected by Gupta in one of her Project Bambai drawings where she incorporates late architect Charles Correas wise words into the artwork It reads Architecture is a usable art It is sculpture but sculpture usable by human beings