This article is written by Sumathi Vadlamudi who is pursuing a Diploma in Intellectual Property, Media and Entertainment Laws from LawSikho.
No one is an exception when it comes to one’s love for movies. We do love watching movies whether occasionally or habitually. It is because of its incredible capacity to tune the human mind and make them hang in the imaginary world that is depicted over there in the film. Everyone irrespective of their age, caste, creed, religion or any other aspect will enjoy this art in some form or the other and in different zones according to their preference like comedy, romance, emotional, action etc.
I still remember watching the movie Sholay and scared of the rude nature of Amjad Khan’s character as a 7-year-old. Similarly, some movies are exceptionally good and will never get old the ones like DDLJ, Kuch Kuch Hota Hai which even I love to watch once again though I’ve watched it for so many no of times by now, especially for the melodious songs sung by the sweet voices of Lataji and Kumar Sanu. But this is only one side of the story or the end result of the complex process to say it in the right way. The other side of the same is unknown to many people who just watch and enjoy the films. Strictly speaking, the risk that is being faced by the owners to protect themselves from unauthorised use and exploitation of films is simply uncountable, if proper measures are not taken by them to protect their rights in such works.
IPR and Cinema
Now the question is where will the intellectual property be involved in a film or movie? To be frank, in every aspect of the movie there is an involvement of intellectual property rights.
Here comes the Copyright Act, 1957 into picture which offers protection against various risks that otherwise would have to be suffered by the producers and can be described as the vital protection as far as the exploitation of films and movies are concerned. Though, the other IP laws like Trademark Act and Designs Act will also have a role to play too to a limited extent.
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Copyright Act and the Cinema
The Copyright Act, 1957 defines cinematograph film means a video recording along with the soundtrack and also any work produced through a process similar to the cinematograph and video films.
Producing a movie or a video film is a cumbersome process and involves long timelines due to involvement of different forms of art like script, screenplay, direction, music, literary work, choreography, performance by the actors, recordings and many other technical departments and so on. The producer has to pour in money right from the beginning of discussion on storyline or even before that sometimes, to come up with a storyline that has potential to earn super good profits when worked on and produced according to the specific expectations of the audience which are highly unpredictable.
So, the rights so attached to all of these various works need to be protected by proper documentation which can be referred to as “Title Documentation”. Then only it will be possible for the producer with the business mind that turns a creative idea into a marketable product, to own the rights in the film, to raise money to the get the project done at the ground level, to make negotiations with the distributors for the best possible reach of the film or movie to the audience in every possible platform.
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It starts with the script whether it is readily available or yet to be developed. If any book or a novel or any storyline is taken for making it into a movie the producer has to get written consent of the writer of the book or novel as the case may be. For this he needs to enter into an agreement with the writer permitting the material to be used for the purpose. The writer being the owner of copyright in the book has to grant the right to use the same by the producer for a specific period of time to make it into a movie for an agreed amount of fee in return.
If the script is to be developed afresh, the producer has to engage a professional script writer to come up with a draft. For this, he may enter into an agreement specifying the terms about revision and changes if any required to the draft, professional fee etc.
Detailed terms on the rights available to the copyright owner on his/her rights for publication of the book, sequel of the story, exploitation on platforms like internet, radio and other media etc. will reduce the potential risk in future.
Similarly, various rights purchase agreements will have to be entered by the producer after negotiating the terms and conditions. These can be agreements with the:
- Screenplay writers,
- Directors, choreographers, sound recorders, cinematographer and various other technical persons,
- Music composers,
- Playback singers.
These agreements are very complex in nature as they involve transfer of intellectual property rights by the authors, performers and other professionals to the producer. It is utmost important to negotiate and decide upon all the related terms along with the payment in order to avoid future litigation from anyone in any form.
Up to here, it can be regarded as the pre-production stage. Various agreements entered in this stage with the authors, performers, director, musician and other technical people like photographers must clearly say about the ownership of the producer in such works. Clear title documentation helps the producer to raise sufficient funds to get the movie shot as per the expected quality and creativity, thereby ensuring the smooth flow of work and will land it in the post-production stage.
Hit combinations of successful directors, performers, musicians etc will make it a bit easy for the producer to raise finance. After the editing, sound recording and other related work is finished and when the movie is ready to hit the screens, the importance of intellectual property rights will again come into the frontline. This can be referred to as the post-production stage.
At this stage, producers need to negotiate deals with distributors who will actually market the film on various platforms like traditional theatres, OTT platforms, digital platforms, selling to international buyers etc to get the best possible return. Again clear title documentation establishing his ownership of various rights in the film will be of great help to the producer to secure the best deals with lucrative returns. It should be capable of clearly establishing the nature of rights being transferred whether exclusive or non-exclusive, the period for which the agreement will be in force, nature of transaction whether it is an assignment or license, remuneration whether fixed or variable, if variable what are all the specific terms which affect the same etc.
Related Provisions of Copyright Act, 1957
Now coming to the legislative backing that these rights enjoy in India can be outlined as follows:
For the purpose of the Copyright Act, 1957 (“Act”)a cinematograph film and sound recording are two different substances in which copyright can subsist.
The copyright once registered it will be in force all over India and the owner thereof will have the exclusive right to:
- rent it on commercial terms,
- make copies thereof,
- take photographs of any images in the film,
- store in any medium either electronic or otherwise,
- communicate the film or sound recording to the public.
Rights of the author & owner
The Act says the author of the work will be the first owner unless there is an agreement to the contrary. So, while engaging various professionals like lyricists, composers, photographers, etc, terms and conditions of transfer of ownership to him/her must be clearly spelled out. However, the Act will not allow the author to assign or waive his right to receive royalties on any future use of the literary or musical work embedded in a film or movie used otherwise than for communication to the public.
Also, the copyright in the cinematograph films will subsist for 60 years from the end of the year in which it has been first published.
The Act also protects the owner from the threat of infringement by way of providing for various civil remedies like injunction, damages without any prejudice to any other remedies available under other applicable statutes for the time being in force.
Though the copyright with respect to the work of actors and performers will vest with the producer according to the agreements entered into between the parties, performers have also been conferred with specific rights called moral rights which will be vested with them irrespective of assignment of their rights to the owner.
Trademarks and Cinema
Trademarks will also have prominence for the success of films. Most of the studios will have specific logos or marks to differentiate themselves from others like Yash Raj films, UTV Motion Pictures, Bhansali Productions, some others like Vijaya, Vauhini, Gemini movies, Suresh productions, Geetha Arts etc from south India have made their sustained growth because of specific identity offered by the registered trademarks.
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There are certain instances where movie titles have been registered for protection under trademark law. Some of the examples are:
- Issue on similarity in title of “Shortkut” as registered by Producer Bikramheeth Singh Bhullar and “Shortkut – The Con Is On” by Actor cum Producer Anil Kapoor has finally end up in Anil Kapoor withdrawing the application for registration and change it to another name that clearly differentiate with that already registered by the former.
- Another issue on the title from south India is with respect to the title “Alluri Seetharamaraju”. It was registered by the late actor cum director cum producer NT Rama Rao to narrate the life of freedom fighter “Alluri Seetharamaraju”, but he couldn’t work it out. Another famous south Indian Film star Krishna has to wait till the expiry of the registered period of trademark on the said title, to make it into a film which was a blockbuster of the time.
- Like that there are so many other instances like Karan Johar’s fight for “Kabhi Alvida Na Kehna”, RGV’s “Nishabd”, Movie Express’s “MR. Nokia”.
Other related IPR and the Digital Era
Product Placement agreements are another important area of concern as this offers a lucrative return to the producer when any product has been made a part of the film.
Digital technology not only made the entire process of film shooting easier than ever but also made it very cost-effective by reducing production costs. An added advantage of using digital technology can be felt with mind-blowing graphics and other unimaginable performances on screen. The Best example that can be given here is the recent movie “Bahubali” with amazing larger-than-life screens. During the pandemic, it is only because of this digital technology along with the internet, films and movies could be streaming on OTT platforms. So, it is very important to have clear documentation for assignment or license of ownership rights whether in whole or part in order to get the best outcome from the investment made into the production of the films.
Films or movies are one of the main sources of entertainment to the public at large. However, the complexity of the production process and need for the involvement of various technical departments improves the risk of potential loss that may have to be suffered by the producer.
In the digital era with the movies streaming on various digital platforms, it is much more difficult to get the full benefit from the exploitation of the film or movie produced.
To mitigate such risk to the maximum extent possible, if not to avoid in full it is of utmost importance to have title documentation expressed in clear terms that all the arising rights are vested with the producer, right from the beginning itself is very important.
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