This article has been written by Aarti Gosavi pursuing the Diploma in Intellectual Property, Media and Entertainment Laws from LawSikho. This article has been edited by Prashant Baviskar (Associate, Lawsikho) and Ruchika Mohapatra (Associate, Lawsikho).
Table of Contents
Introduction
“The most important thing about intellectual property vs. creative expression is that copyright law was created not to stifle creativity but to encourage creativity” as quoted by Shepard Fairey, holds true since the inception of copyright law. There are various types of intellectual properties i.e. patents, copyright, trademarks, geographical indications, industrial designs, trade secrets, layout designs of integrated circuits, plant varieties. India does not have a coded law to protect trade secrets. Copyright is a form of intellectual property that protects literary, dramatic, musical, artistic work, a cinematograph film, and a sound recording. Computer programs can also be protected through copyright and they cannot be protected under patents per se. When a sensational event happens or when a person earns certain accolades for their country, we’ve seen movie producers and writers trying to book certain titles associated with the aforementioned events. This is done to monetize the event as well as prevent others from using it for themselves. Sometimes similar movie titles end up confusing the audience and it is in order to maximize monetization and ensure that the title is unique that movie titles are sought to be protected the way any other creation is protected. This article talks about whether movie titles can be granted protection only through copyright or any other intellectual property protection is required.
Why is it economically important?
Intellectual property rights are intangible rights. These rights protect the creativity of the original creator/author /owner from any kind of infringement. Intellectual property rights can be mortgaged, sold, leased, bought, and licensed just like any tangible immovable property. If the infringement of intellectual property remains unchecked then the original author/creator/owner gets demotivated and will not be able to create any new masterpiece. This will further result in no income to the original author/creator/owner due to which the government will not be earning any tax from such people. This will further deteriorate the economy of the country since the government will be able to develop the nation e.g. infrastructure development only through taxpayers’ money. Thus if you compare the developed nations of the world they possess many types of intellectual properties in their intellectual property portfolio which further helps them to monetize it for any business development which in turn helps that country to develop economically. Copyright is one such of intellectual property which if not encouraged then authors/creators will not be able to protect their creativity which is needed to prevent its misuse from happening.
Protection of movie titles under copyright
A movie title is a title or a name given to a movie to distinguish it from other movies which are produced. The movie title is the very first impression that gives to the readers that the scriptwriter has taken a considerable amount of time in writing the script. The movie title describes very aptly what can happen in the story. The title distinguishes it very well from others which further plays one of the significant factors in doing good business for the producers and production companies. It is a common business practice in the entertainment industry to register the titles with movie associations. The title of a movie is not considered an expression of an idea. The Copyright Act does not protect an idea per se as it protects how the idea is expressed. The rationale behind not giving copyright protection to any idea is that it would stop any new creativity and innovation thus there is no copyright protection given to an idea and also there is no provision that protects movie titles under the copyright act.
Related provisions
We have just seen that the Copyright Act does not protect movie titles from being copied. Trademark protects the brand name of any company from being misused. The movie title, if registered under Trademarks Act, 1999 can be protected from infringement if it is later being used by anyone without express permission from its owner, and if it is unregistered then it can be protected under the act of passing off since it can be proved as to who is the prior user. The movie titles are protected under Trade Marks Act, 1999. The movie titles are protected under Class 41 of the Trademarks Act, 1999 that protects entertainment services.
Registering the titles with the film industry
It has been mentioned above that it is a common business practice in the entertainment industry to register the titles with the movie associations such as the Indian Motion Picture Producers’ Association (IMPPA), Association of Motion Pictures, and Television Program Producers (AMPTPP), or Film Writers’ Association. This is done in good faith with the intention that their movie titles will not be used by anyone else without them being first consulted. This action does not amount to intellectual property protection on a standalone basis and is protected under class 41 of the Trademarks Act, 1999 as mentioned in the previous paragraph and explained further in the below judgments.
Case laws
In the above case, the plaintiff had already registered the title “Thank You” with the Association of Motion Pictures and T.V Programme Producers and others in 2005. Registration of a title with the industry association does not protect the title from any other person using it. The title must be registered as a trademark to be entitled to statutory protection. The plaintiff knew that UTV was using that title since May 2005 and thus, the plaintiff was not entitled to any copyright protection also due to the title not being registered. The movie was due for release in theatres and granting an interim injunction was not possible since the production house would have suffered losses if an interim injunction was granted by the court at that junction.
In this case, the plaintiff i.e. Kanungo Media (P) Ltd had already produced a movie ‘Nistadbd’ which was later changed to “Nisshabd” due to astrological and numerological factors. The defendant had also produced a movie with the same title “Nishabd” which was due for release in theatres in the next ten days. The plaintiff had invested all his life savings in the movie and had also received monetary help from his friends, family, and relatives to realize his dream of making a movie. The plaintiff had also won a huge monetary allotment which is known as ‘FONDS SUD CINEMA’ given by the French Government. The plaintiff had also brought M/S Artcam International, France on board as the co-producer of the movie to satisfy one of the conditions prescribed to be eligible for receiving a grant for the production of the movie. Once the shooting of the movie got over the producer contacted the Central Board of Film Certification through the Western India Film Producers Association for clearance of the movie title on 08/06/2005 and it was granted on 17/06/2005. The plaintiff claimed that the use of the title by the defendants was a deliberate attempt on the defendant’s part to spoil his image and produce a movie on the same title to gain commercial benefits based solely on the title of the movie. The plaintiff claimed that he had applied for the title before the defendant and hence enjoyed the right of prior use and thus the defendant had no right to use the same title. The defendant had already invested huge money in producing and making the movie.
The court held that the plaintiff had allowed the defendants to complete the shooting and post-production of the movie and the plaintiff ought to have stopped them immediately as soon as the defendants announced that they are about to work on a movie with the title “Nishabd”. The injunction cannot be granted to the plaintiff at this stage since it is very late and this will cause huge losses to the defendants. Thus, the court set aside the application and refused to grant an injunction to the plaintiff.
In this case, the plaintiff had applied for registration of trademark/ title“KANK” on 17-05-2005 under the Trade Marks Act Class 41. The court held that neither of the parties had coined the word ‘KANK” on their own. The word “KANK” was being used by people long before the plaintiff and the defendant even thought of making a movie out of it. The permission for exclusive use would only be determined after carefully examining who has used the mark for a longer period. The judiciary cannot allow exclusive or proprietary use of any common word. The defendant applied for registration of the trademark before the Registrar of Trademarks and the Trade Guild. He had completed the production of the movie, sold the music rights to Sony BMG Music Entertainment (India) Pvt. Ltd. for Rs 5 crores and many copies had already been sold in the market and he was ready to release it in theatres. The court could not grant an injunction to the plaintiff at that point as it would have resulted in huge losses to be borne by the defendant. The plaintiff failed to use the title and also did not take timely action when he came to know that the defendant was about to use the title for his new movie through newspapers, Trade Guild or Association. Thus, the court refused to grant an injunction to the plaintiff and ordered for the release of the movie with the same title.
Conclusion
We have already seen that the consequences of not protecting the title of a movie result in copyright infringement. The title of a movie must always be protected by registering it as a trademark and not just merely registering it with movie production houses. The applicant who applies for an injunction must also be vigilant enough and keep a watch as to who is registering for the applicant’s movie title with the movie productions as well as with the intellectual property office so that the applicant can stop the opponent well within time and not sleep over his/her rights and approach the authorities at a later stage when it is too late.
References
- https://www.lexology.com/library/detail.aspx?g=e1012dd5-4276-431c-8d60-9faae1a8b493#:~:text=A%20film%20 title%20is%20protected,41%20of%20Trademarks%20Act%2C%201999.
- https://industrialscripts.com/movie-titles/
- https://www.indiacode.nic.in/handle/123456789/1993?locale=en.
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.
LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA
Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.
