This article is written by Sukeerti Samalei Mishra pursuing a Certificate Course in Introduction to Legal Drafting: Contracts, Petitions, Opinions & Articles from Lawsikho.
This article has been published by Sneha Mahawar.
A film can be defined as an amalgamated product consisting of the professional expertise of various artists focused on bringing life to a work of fiction. It is a complex copyright work since it consists of the labour of a number of individuals. It can be compared to a puzzle, for it requires the perfect arrangement of all its elements to form a beautiful end product. The storyline and dialogue of a film, the actors that portray the characters, the kind of costumes and make-up used, the choice of a particular location, the music to hit the right feelings, etc., are of vital importance to ensure an amusing experience through the film. There are numerous creatives involved in the making of a film, such as a writer, directors, cinematographers, actors, music composers, editors, make-up artists, and dubbing artists, to name a few. A film is quite incomplete without any of these contributors.
A copyright is a kind of intellectual property right that gives an exclusive right to the owner of an intellectual property. When one’s mental faculties are used to create a product, such a product is called intellectual property. Copyright is a work of legal fiction that provides various rights to the creators of a work. Copyright could exist in books, poems, prose, films, computer programs, databases, songs, maps, advertisements, etc. Having copyright protection gives the owner the right to reproduce their creation or authorise any other person to do the same. Such protection ensures that one’s creation is not duplicated and exploited by others without the authorisation of the owner. Works that can be given copyright protection include literary works, dramatic works, musical works, artistic works, cinematograph films and sound recordings.
Understanding cinematograph films
This paper aims to discuss the facets of copyright in cinematograph films. Section 2(f) of the Copyright Act, 1957 defines a “cinematograph film” as any visual recording work including an accompanying sound recording and shall be construed to include any such work like video films produced by analogous methods to cinematography. The definition of cinematograph film has undergone some amendments in order to bring more clarity to the definition. Before the 1994 Amendment to the Copyright Act of 1957, the provision simply said that cinematograph film includes the soundtrack and cinematograph meant any work that is produced via any process that is analogous to the process of producing a cinematograph film. The legislative intent in making amendments to the definition was to emphasise the need for originality in a visual recording to become a cinematograph film in which copyright can subsist. Copyright cannot subsist in just any visual recording like in the case of CCTV footage, but there has to be some degree of originality in it for there to be any scope of copyright protection. Justice Krishna Iyer‘s footnote in Supreme Court‘s decision in the Indian Performing Right Society v Eastern India Motion Picture Association (1977) gives a beautiful explanation of Cinematograph Films:
“A cinematograph film is a felicitous blend, a beautiful totality… Cinema is more than long strips of celluloid, more than miracles in photography, more than song, dance and dialogue and, indeed, more than dramatic story, exciting plot, gripping situations and marvellous acting. But it is that ensemble which is the finished product of orchestrated performance by each of the several participants, although the components may, sometimes, in themselves be elegant entities.”
Thus a cinematograph film is more than a compilation of videos and photographs. It is the brainchild of different artists who have come together to create a work of art. It is a reflection of their artistic abilities. As discussed earlier, the marking of a film involves the arduous efforts of various contributors. If so many people contribute to the making of a film, who then owns the copyright in a film? And more importantly, do writers and directors who are the driving force in the creation of a film hold any copyright in it?
Why have copyright
It is essential to understand the significance of holding a copyright. To understand better who can own it, it is essential to know why to own it. Holding copyright to a work vest the owner with various benefits to utilise and exploit the work to their advantage. Apart from the obvious advantage of protection, having a copyright gives the owner of the work the right to reproduce, perform, distribute, publicise as well as translate the work. Simply speaking it gives a monopolistic right to the owner for their distinctive creation. Let’s take the example of the book “The Alchemist” by Paulo Coelho. It was first published in 1988 and written in Portuguese. The book became so widely famous that now it has been translated into more than 80 languages. There have also been theatrical adaptations and CD booklets of it. Moreover, a movie adaptation of the book is also being produced. It is to be emphasised that none of these conversions could have happened without the consent of the author Paulo Cohelo because he holds copyright in his work. If a person were to copy the story in the book and distribute it as their own creation, then they could easily be sued for copyright infringement by the author. Having a copyright also provides other moral rights such as paternity rights and integrity rights as discussed under Sections 57(1)(a) and 57(1)(b) of the Copyright Act, 1957. Thus, moral rights are mentioned under Section 57 of the Copyright Act, 1957 which was incorporated in accordance with Article 6bis of the Berne Convention, 1886. Moral rights encompass all the natural rights that a person has in their creation which reflect the personality of the creator. Paternity right is the right of the author to have authorship or ownership of the work whereas integrity right is the right of the author to prevent any person from distorting, mutilating, modifying or changing the work in any manner. The author can also claim damages in relation to such changes. This right essentially helps to preserve the integrity of the work. An author is entitled to moral rights as long as the copyright subsists which is generally for the lifetime of the author plus additional 60 years after the death of the author.
Meaning of author in Copyright Act, 1957
To understand who holds copyright in a cinematograph film it is important to understand the concept of an author under Section 17(b) of the Copyright Act, 1957. According to this provision, in the absence of any contrary agreement, the person at whose instance a cinematograph film is made for valuable consideration is the author of the work. From this definition, it can be understood that a producer of a cinematograph film has copyright in it since it is at the instance of the producer that a cinematograph film is made for valuable consideration. Section 2(uu) of the Copyright Act, 1957 defines a producer. It emphasises the requirement of taking the initiative and responsibility of a person to be called a film producer. In Ramesh Sippy v. Shaan Ranjeet Uttamsingh & Ors. (2013), S.J. Kathawalla, J. reiterated the necessity of taking the initiative and responsibility. The court also said that in deciding who is the author of a film it is to be seen who has taken responsibility for making arrangements, particularly in a financial sense. From this, it can be understood how important the financial contributions and arrangements by a person are for the question of determination of who the author is. Giving the title of an “author” to a producer/ production company whose contribution to making a film is absolutely in monetary terms and not in creative terms has unfortunately become a statutory norm.
But what about the various people associated with making a cinematograph film who contribute in a creative capacity and not in a financial capacity? Do they hold any copyright? It is not only the money spent that creates a film, but it is in fact the creativity applied that materialises itself into a work of art.
Facets of copyright in cinematograph films
Understanding a director’s rights
Copyright subsists in a film as a whole which means that different creators do not have an independent copyright in a film but it is the producer in whom copyright to the film as a whole subsists. However, sometimes copyright subsists independently in some underlying works of a film such as the novel or biography on which the film is based, music, choreography, screenplay, etc. But it does not subsist on some of the important contributions that help in shaping and forming the film such as direction, cinematography, editing, etc. Many people believe that it is the director who must have the copyright. It is important to refer to the “Auteur Theory” at this juncture. This theory was propounded by Alfred Hitchcock, one of the most influential figures in the history of filmmaking. He said that a director is the true author of a film, for the film is a reflection of the director’s personality and ideas. According to him, a movie directed by a certain director has visual queues and recurring themes that inform the audience who the director is. For example, if one watches a film directed by Anurag Kashyap, the audience can easily identify who the director is because there is a persistent style and theme in his films that make them distinguishable. Likewise, films made by Sanjay Leela Bhansali, Quentin Tarantino, and Karan Johar have elements of their personal style that give the audience an idea about who the director is. But “Auteur Theory”, however pivotal in starting dialogues relating to the authorship of a director in cinema, is still a theory. To understand the copyright in a cinematograph film, which is essentially a legal fiction we have to go by precedents. One of the first cases dealing with the copyright of a director in a film was in the case of Sartaj Singh Pannu v Gurbani Media (2015) wherein it was said that it would be a matter of evidence to decide whether a work of a director in a particular film can be stated to be a work of artistic craftsmanship. In Kabir Chowdhry v. Sapna Bhavnani & Ors (2021). the question was whether any contribution made by a person in a film vests them with the copyright to the film. The court observed that in the context of a cinematograph film:
(i) the author is the first owner of the copyright;
(ii) the author means the producer (and no one else); and
(iii) the producer is he or she who has taken the initiative and responsibility for making the work.
The court emphasised points of “financial investment” and “risk of suffering losses” by the producers and said that even though the director is involved in every stage of making the film, it is the producer who is the author. The Court also referred to the auteur’s vision of work and said that in addition to it the person must have taken the initiative in conceptualising the work to bring it into existence and there must be an element of risk in the nature of his responsibility, for such person to become a co-producer.
In a very recent case of S.J Suryah (a.k.a. S. Justin Selvaraj) v. S.S. Chakravarty & Anr. (2021) the question was whether giving credits to a person as a writer or director of a film entitles him to claim original ownership of the script, screenplay or dialogues in the absence of a written contract. The appellant/plaintiff, in this case, was unable to prima facie prove his claim of copyright. The court said that the mere giving of credits by the producer would not entitle the director/writer to claim copyright. In the absence of any document showing that the appellant/plaintiff had retained his rights, the court relied on statutory provisions to reject the prayer of interim injunction against the producer. However, it is to be noted that a director does not merely direct or command the different creatives involved in the making of a film. Still, it is his/her utmost responsibility to harmonise the working of all these individuals to create an impactful work of art. A director is not merely an agent of the producer who acts as per his/her directions. On the contrary, the director holds creative autonomy and is responsible for conceptualising and creating the by engaging various creatives.
Understanding a writer’s rights
One of the most ignored contributors to a film is the writer. The story of a film is the manifestation of the imaginary world of a writer. He/she adds life to this imaginary world by creating characters and telling a story through these characters. The story of the writer is the entire foundation of a film. Unfortunately, when it comes to films, writers are not given enough recognition and credit for their work. Films are often popularised by the names of their directors and producers but hardly ever by the names of their writers. As discussed earlier, under Section 17 of the Copyright Act, 1957 if a work is created during the course of employment then the employer is the author unless there is a contract to the contrary. This means that even a writer is not the author of a cinematograph film under Section 17. Rights in scripts are often assigned to the producer. Copyright does not subsist in ideas but in the material that is produced through the ideas. If a writer has channelised their ideas to create a book, biography, novel, etc., then copyright subsists in such materials. In Donoghue v. Allied Newspaper (1937), it was said the person who originates a brilliant idea is not the owner of the copyright unless he has also created a work using such an idea. Copyright subsists the moment the idea is materialised, and it is not mandatory to register it. However, it is advisable to copyright one’s work since the certificate of registration of copyright acts as a prima facie proof in case of conflict or infringement of copyright. Generally, during script clearance, these rights of the writer are assigned to the producer of a film either wholly or partly and generally are subject to limitations either for the whole part of the copyright or any term thereof. If the script is incorporated into a film, the producer becomes the first owner of copyright in such underlying work unless there is a contract to the contrary between the author of such work and the producer of the film as could be gathered from Salim Khan v. Sumeet Prakash Mehra (2013). Such a rule undermines the contributions of a writer.
Before the Copyright Amendment Act, 2012 the law relating to royalties favoured the producer. It was said that any underlying work (musical and literary work) incorporated in a cinematograph film or sound recording was deemed to be created under a “Contract of Service” under Section 17 and thus the copyright in such material was transferred to the producer or employer. This meant that even if the producers made huge profits using the underlying works of the writer, the writer was merely entitled to the initial assignment fee and had no share in the profits subsequently earned. Giving excessive importance to contractual agreements and undervaluing a writer’s contributions resulted in disproportionate bargaining power in the hands of the producers when compared to that of the writer. However the Copyright Amendment Act, 2012 was a paradigm shift for the rights of writers. The amendment to Sections 18 and 19 of the Act created provisions for the right of the writer to receive royalties. The proviso to Section 18 now mandates the equitable sharing of royalties in the case the underlying work (literary and/or musical work) is utilised for any non-cinema use. This means that if a film script is licensed to be used for a Netflix show, then the screenwriter has the legal right to receive royalties. Further, this right cannot be waived or assigned through a contract. As per Section 19(9) of the Copyright Act, 1957 if the author assigns the copyright to a third party this would not affect the writer’s right to receive royalties. Let’s say Dharma Productions assign their copyright in “Kabhi Khushi Kabhi Gum” to a different production house. Then this will not cease the right of the writer of the film to receive royalties. It is pertinent to note that these amendments have prospective effects as established in the case of Salim Khan v. Sumeet Prakash Mehra. However, even after the amendment, screenwriters are still restricted by one-sided contracts and are devoid of enjoying the true fruits of their labour. Even today, what screenwriters get are not proper royalties but a small percentage of the profit made through secondary exploitation of the film after it has run in cinema halls.
In the case of Thiagarajan Kumararaja v. Capital Film Works (2017), the appellant was the screenwriter and director of the film “Aaranyakaandam”. The appellant had not assigned their copyright in the script and on the producer’s attempt to dub and remake the film, the suit was filed. With regards to remaking, it was held that since remaking would essentially require making certain changes to the script which was not assigned to the producer, it was beyond the producer’s right to do so. With regards to dubbing, the court allowed it, expressing that sound recording is a part of the film and the producer has exclusive rights over it. Precedents like this have ensured some rights to the writers; however, writers and directors are still not equal stakeholders in the Indian film industry.
As discussed earlier, the creator of a work has moral rights in his/her creation. Enforcing one’s moral rights is a way through which a writer or director can ensure that their work is not misused.
The landmark case of Amarnath Sehgal v. Union of India (2005) established the way in which moral rights should be interpreted. The plaintiff was a well-known sculptor who was commissioned to create a mural for the Government of India to be displayed in the Vidhan Sabha. Subsequently, the Government of India removed the mural and stored the mural in a store room without any notice to or authorisation from the plaintiff. The mural was also slightly damaged due to negligence and mishandling. The Government argued that since the work was commissioned and due consideration was paid, they had the sole authority to determine the way the work was to be used. The court rejected the argument and said that an author of a work does not lose moral rights to the work enshrined under Section 57 of the Copyright Act,1957 even after the sale. The destruction and mutilation of the mural were prejudicial to the author itself regardless of who the owner is. Thus such an act was held to be an infringement of the author’s rights. This judgment thus protected the soul of artistic expression.
Mannu Bhandari vs Kala Vikas Pictures Pvt. Ltd. (1986). established that remedies of injunction and damages can be claimed on the basis of moral rights under Section 57 of the Act even after the assignment of rights by the artist. Thus, in the context of writers and directors, Section 57 must be interpreted taking into account the recent developments, thus striving to make the film industry equitable for everyone.
Intellectual property rights were themselves created to protect the intellectual labour of a person. The very rationale of basing an intellectual property right such as copyright on the financial aspect goes against the principles of granting intellectual property rights. From the above discussion, it is amply clear that the vesting of copyright tilts more towards the producer of a film. The role of the producer is no doubt very important but we cannot turn a blind eye to the relentless contributions of other creative contributors by granting the copyright to a producer. Paying for the creation of a thing and investing oneself in actually creating a thing are two different aspects. Since IPR strives to protect intellectual labour, the latter should be paid more heed in deciding who has the copyright.
The creators of underlying works as well as the director are considered secondary while determining the question of copyright. The ambit of “author” could be expanded to give due recognition to these creators. What could be done is providing joint authorship to other important creatives involved in the making of a film. Under the UK Copyright Act,1988 a principal director is also the joint author/ joint owner of the copyright. Even though the laws in India are greatly inspired by the laws of the UK, we have failed to imbibe such an equitable principle in our system. Furthermore, it is settled that the producer has higher bargaining power when compared to other creators like the writer or the director. But what we often miss to consider is that different creatives also have different bargaining powers based on their stature. For example, a renowned writer has a higher bargaining power than a budding writer, so it is probable that the former has more rights in his underlying work than the latter. When we are ensuring that different creatives have protection in their work, we must also ensure that the nature and scope of such protection must not depend upon their individual bargaining power. Thus, this calls for uniform laws to be incorporated into the Copyright Act, 1957. The courts must limit the rights of producers in cinematograph films. Even though the 2012 amendment was promising to ensure the rights of creators, it is still not effective in ensuring the same. This also calls for necessary amendments to be made to the Copyright Act, 1957.
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