Copy Right Issues in the Media Industry

In this article, Rupali S. Akolkar discusses Copyright Issues in the Media Industry.

Intellectual Property Rights in TV Reality Shows

It has become a matter of pride for every channel to boost of its own Reality Show and to have its theme, concept and taglines protected by means of securing their Intellectual Property Rights.

Copy Right Issues in the Media Industry

  • Author’s work is legally protected by the copyright. After copyright, the work immediately becomes the property of the author. With the reality shows becoming popular, a lot of competition has been generated between and among channels to hunt employees of the rival channel or to get a secret view of their script. This causes a huge loss to the author, as well as the channel.
  • In order to fund the serial, it becomes imperative that the script is shared with prospective investors. Since there is no documentary evidence of sharing, the same can be misused anytime and used for the personal gain without giving any financial or other credits to the owner. This can be best avoided by using legal means to secure your rights.
  • Copyright does not protect the idea, per se. But if it is made into a tangible thing, like a script, or an email, the expression or documentation can prove the date of origin and the owner. This will help you along with a Non-disclosure agreement to protect your interests.

Ownership of Taglines

  • Generally, it is the actor or the anchor who uses a particular tagline which becomes so famous, that it is for that actor or anchor using that tagline that the show goes on, and gets worldwide fame. For eg. The famous taline of Shri Amitabh Bacchan in Kaun Banega Karodpati, “Computer ji lock kiya jaye”.
  • There can be a level of ambiguity as to whom do the rights in the tagline belong?
    • To the actor, director,
    • Writer,
    • Producer
  • Here the Act comes into play. Sec. 2 (d) (v) of the Copyright Act states that the author of a Cinematographic work or sound recording is the producer.

Contracts to protect Intellectual Property

There is a constant race between channels in order to increase their viewer ratings. Due to this often there is poaching of employees and also snatching of concepts. Concept per se cannot be protected under the laws of Intellectual Property Rights in India, but their expression can definitely be protected. For example:

  • If a person has a concept or a story around which his show or serial is to develop, he can express it in the form of a literary and dramatic presentation and then seek a copyright registration to protect the same.
  • A person can even secure his rights in the other elements like the stage:
    • the presentation module,
    • the taglines used in the show,
    • the music composition etc.
  • Securing his rights over certain important elements, and at certain vital stages can help him protect his show/ series from being infringed and reduce the vulnerability.

IPR and Production Bible or Formats

Zee Entertainment Enterprise [1] had initiated a quia timet copyright infringement and passing off action in Bombay High Court against Sony Pictures Network India for alleged infringement of their copyright in the Production Bible of India’s best Dramebaaz and contended that Sony’s Sabse Bada Kalakar was a copy of Zee’s show.

The propositions considered here were the same as in R. G. Anand Vs. M. S. Delux Films & Ors [2] :

There can be no copyright in the followings

  • In an idea,
  • subject- matter,
  • Themes,
  • Plots,
  • historical or legendary facts

Violation of the copyright in such cases is confined to the form, manner and arrangement and expression of the idea by the author of the copyrighted work.

  1. Where the same idea is being developed in a different manner, it is manifest that the source being common, similarities are bound to occur. In such a case the courts should determine whether or not the similarities are on fundamental or substantial aspects of the mode of expression adopted in the copyrighted work.
  2. If the Defendant’s work is nothing but a literal imitation of the copyrighted work with some variations here and there it would amount to violation of the copyright. In other words, in order to be actionable the copy must be a substantial and material one which at once leads to the conclusion that the Defendant is guilty of an act of piracy.
  3. One of the surest and the safest test to determine whether or not there has been a violation of copyright is to see if the reader, spectator or the viewer after having read or seen both the works is clearly of the opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the original [3].
  4. It was considered that in case of quia timet application the standard of proof is much higher and the facts of misrepresentation and damage could not be proved indisputably.
  5. If we consider the order in its entirety the general opinion is that given the complexities involved in the reality shows, monopoly cannot be granted in non-specific terms. Although the production bible does enjoy copyright protection, it is not possible for all the common elements which are already in the public domain to enjoy such protection

Unquestioned

  • There is an interesting case of the reality Show “Big Boss”, wherein, its makers the Endemol Group has sued Sun TV, Vedartha Entertainment and others[4], who were involved in the making of the Malayalee House show, for copyright infringement, alleging infringement of the production format, and seeking an injunction against them.
  • Besides the conflict between the channels per se, there is also the possibility of infringement in case of taglines of:
    • other products,
    • Serials,
    • Names,
    • music compositions, or
    • song lyrics being infringed.
  • The Big Boss Kannada makers Prism TV and Eenadu Kannada Television were restrained by an order of the Court in favour of Lahiri Recording Company whose copyrighted song “Yarivalu” was played in the background for one of the episodes of Big Boss Kannada.
  • Further to this, there is an order of the Delhi High Court in India TV Independent News Service Pvt. Ltd. & Ors. Vs. Yashraj Films Pvt. Ltd., which states that a small amount of usage of songs in a television program did not amount to infringement and it was a case of de minimis.
  • In the case of Saregama India Ltd. Vs. Viacom 18 Motion Pictures and Ors[5] (Special 26), the Calcutta High Court held that the use of the song “mere sapno ki rani” for less than 7 seconds was de minimis and not meant to be considered for legal action.
  • In the international spheres, the Courts of America, particularly in cases involving claims of CBS and ABC, have declined to grant injunctive relief and damages to TV show plaintiffs more on the ground that although the ideas and stock elements were shared, the expressive content, design and details of the setting were all different, whereas in a case of infringement, they are supposed to be “substantially similar”.
  • We had the famous case of Celador Productions Ltd. vs Gaurav Mehrotra And Anr [6]. Wherein the plaintiffs had filed a suit for permanent injunction against the defendants from running a website with the name crorpatikaun.com, which was a game based on the format of the game Kaun Banega Karodpati, or any name which was deceptively similar to that or “Who wants to be millionaires”. The Delhi High Court restrained the defendant from using the name crorpatikaun or Kaun Banega Karodpati as their second level domain name, in any manner to provide games based on the same format as that of the program of the plaintiff.

Character identity

  1. In Arbaaz Khan Vs. North Star Entertainment Pvt. Ltd [7]., the copyright in the character “Chulbul Pandey” was discussed. The Bombay High Court opined that “As to the general principle that the character is unique and the portrayal of that character, as also the “writing up” of that character in an underlying literary work is capable of protection is something that I think I can safely accept”.
    • For a character to gain copyright, it has to have its own public existence and it must have gained a public recognition, independently.
    • Any reference to or use of such a character in a reality show, can bring a case of copyright infringement against the makers.
  2. In the case of Barbara Taylor Bradford v Sahara Media Entertainment Ltd [8].

In the above case the plaintiff sued the defendants for infringing her copyright in the book – a Woman of Substance, and intended to stop the telecast of the 300 episode serial Karishma – A miracle of destiny. Court did not grant injunction stating that Copyright does not protect basic plots and characters.

  1. In the hit TV Show Survivors, the producers sued the producers of the “Boot Camp” for substantial similarity in the show. The suit was ultimately settled, but what was clear is that the Copyright does not protect raw ideas but the expression of the program[9].
  2. TV shows per se fall flat on the claims of copyrighting the ideas. But the expression and design can definitely be a subject for copyright. The major problem with the Reality TV shows is that they are unscripted, and Copyright protection is generally extended to “fixed expressions”.
  3. There have been many cases of idea misappropriation especially when employees are lured with heftier pay cheques and vertical growths to change sides. This can be protected to some extent in India by means of the Non-compete clause and the Non-disclosure agreements with all employees, and participants who are going to be an essential part of the project.
  4. In case of Reality TV shows, it is important to protect the script, story, or tunes i.e. the production bible by means of a copyright and the catchphrases which contribute heavily to the popularity of the show and which can be given a trademark protection also.
  5. All information which relates to the story, policy, expression and design of the show can be protected by means of IPR and also through NDAs and contracts between the concerned persons.
  6. Format recognition and protection is not always easy and during the MIPTV’s conference in Cannes, 13 companies from 11 countries have formed a Format Registration and Protection Association. It works to protect rights and stop format piracy. FRAPA is thus an international Format Industry Association which works in a dedicated manner to protect formats.
  7. In case of Formats, it is not just enough to express the idea, but there should be creativity, novelty and originality in the expression. The more intricate and detailed you make the description, the more is the possibility of protecting it with a copyright.
  8. In India, the format can also be registered with the Association of Motion Picture producers and Television Programs Producers of India or the Script Writer’s Association.

Offences and penalties

Offences of infringement under the Copyright Act are “Cognizable Offences” and such offenders can be subjected to:

  • police search, and
  • seizure

Sec. 55 of the Copyright Act provides for Civil Remedies

Sec. 63 of the Act provides for Criminal Remedies in case of Infringement and speaks of remedies by way of:

  • Injunction,
  • Damages,
  • accounts, or
  • other remedies conferred by law on the owner,

The punishment ranges from 6 months to 2 years along with a fine of INR. 50,000 to INR 2,00,000.

Sec. 64 empowers the police to seize infringing copies and all materials used to produce the same.

Trademarks

Besides the Copyrights, the names of the Shows can also be a subject of IPR.

In the case of Gen X Entertainment vs. Purple Haze Entertainment, the Bombay High Court directed the defendant to furnish a bank guarantee and a disclaimer, indicating that there is no relation between the serial Emotional Atyachar and the Picture sought to be released with the same name. Thus it is important to trademark the names also.

Other legal implications

  • Besides Copyright infringement, there are other legal issues to consider in case of TV Reality shows.
  • The privacy rights of the participants, particularly ordinary people, who may tend to disclose or reveal a tad bit more of their personal lives to be visible to the public.
  • There are Advertising Laws, Broadcasting Laws, Censorship constraints, Internet and Telecommunication Guidelines, which need to be considered in the hosting of a show.
  • During the Shooting, there may be a need to consider emergencies, and overall welfare of the team by ensuring
    • compliance with labor laws,
    • specific insurance policies etc.
  • It is also necessary to follow the laws related to:
    • the Emblems and Names (Prevention of Improper use) Act, 1950,
    • The Drugs and Magic Remedies (Objectionable Advertisements) Rules, 1955, the user of Tobacco and other such products, etc.
  • There are TV reality shows like Moments of Truth where the participants earn on speaking the truth but the questions are so filthy that they risk exposure before their family and it is almost a media confession. The people who opposed such reality TV shows were told to resort to the Gandhian way of switching off their TV Sets instead. Thus Reality shows also have to face the ire of public when they challenge the ethical or moral laws of the country in which they are broadcasted.
  • Besides these, there are various Central and State law requirements which have to be complied with.
  • The Telecom Regulatory Authority of India has laid down certain guidelines for telecast of programs, and the duration of advertisements therein.
  • In addition to that, the Reality Shows also have to follow the restrictions and guidelines stated by the Ministry of Information and Broadcasting:
    • the Advertising Standards Council of India,
    • Advertising Code under Cable Television Networks (Regulation) Act, 1995 and Rules 1994,
    • Standards of Quality of Service (Digital Addressable Systems) Regulations, 2012,
    • Animal Welfare Laws,
    • Guidelines issued by the National Commission For Protection Of Child Rights (NCPCR) with respect to:
      • safeguarding child artists in the Film and Television Industry,
      • Gaming and Sports Laws,
      • Competition Laws,
      • Gambling Laws,
      • Indecent Representation of Women (Prohibition) Act, 1986,
      • Cigarettes And Other Tobacco Products (Prohibition Of Advertisement And Regulation Of Trade And Commerce),
      • Production, Supply And Distribution (Second Amendment) Rules, 2005 besides the Local and National laws.

Thus although the Constitution of India guarantees freedom of speech and the freedom to choose any occupation, these are subject to certain restrictions in the interest of the sovereignty and integrity of India, security of the State, friendly relations with foreign states, public decency or morality, etc.

Conclusion

Subject to all these constraints, the Reality Show, has to still survive, and move head on to capture the attention of its viewers, and get an increased Television Rating Points (TRP) for the channel. This is only possible when right from the time of inception, the people involved are aware of their legal rights and take due care in protecting the intellectual property residing therein.

In simple terms, it is as good as officially naming your precious baby and ensuring that it has a legal and valid birth certificate so that the baby has an official identity and can seek all rights and legal remedies under the law of the country in which it is born.

References

[1] NOTICE OF MOTION (L) NO. 68 OF 2017 IN COMMERCIAL SUIT (L) NO. 74 OF 2017

[2] 1978 AIR 1613

[3] https://indiankanoon.org/doc/89959670/

[4] Notice of Motion (L) No. 1219 of 2013 in Suit (L) No. 514 of 2013

[5] TA. No. 29 of 2013 with T. No. 62 of 2013

[6] 96 (2002) DLT 543

[7] https://indiankanoon.org/doc/147169740/

[8] G.A. No. 2310 of 2003, A.P.O.T. No. 394 of 2003 with C.S.No. 145 of 2003 and T.S. No. 210 of 2003

[9] Survivor Productions LLC v. Fox Broadcasting Co., 2001 U.S. Dist. LEXIS 25511 (C.D. Cal. June 12, 2001)

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