By: Chandni Ghatak
The copyright regime in India is of particular significance due to the increase in the number of daily releases. While the audience witnessing, such works may be unaware of the internal tussle occurring between the various stakeholders involved in such creative process, determining the authorship of such works is of paramount importance, in order to protect and further encourage individuals to engage in the creative business of making movies. This essay is designed to provide comments on two main aspects, i.e., identifying the various components forming a cinematographic film followed by an analysis of the current position of law on the authorships concerning each of the identified components.
What goes into making a Movie?
Film making, unlike writing of a book, is a highly collaborative process. It is a process which involves several individuals and their works which culminate into a film. This lengthy process gives rights to different individuals performing different functions such as script writing, composing music, art direction and individual performances of actors.[1]
For any film production unit, the first task is to formulate or arrive at a suitable pre-existing work which may be used as a script. Under § 17 of The Copyright Act, 1957 Act, a clear exposition has been rendered as to the authorship of cinematographic films. A scriptwriter who is hired by a producer for creating a suitable script, by the law does not hold any copyright over the work he provides.[2] A more intriguing query then emerges, in the form of who is the author of an underlying work which may exist even before a producer decides to make a movie? This query was answered by the Bombay High Court wherein the position of law was made clear, that if in case a pre-existing script over which a writer enjoys a copyright was provided for the making of a film, unless and until such separate copyright was transferred to the producer, the producer would have no copyright over such underlying work. [3] Otherwise, the general position of Indian law, through a mere perusal of the Act vests the authorship of such film, unless the contrary is proven with the producers automatically.
Another component constituting such cinematographic film is the musical & literary works which cover the song and its lyrics respectively. Largely, India has followed the ‘Work for Hire’ doctrine which was enunciated in the landmark case of Indian Performing Right Society v. Eastern India Motion Picture Association[4], wherein the rights of composers or lyricists are hit by the provisos (b) & (c) of § 17 of the Act. However, with the 2012 amendment of the Act, lyricists and music composers were given the right to receive royalty even in the face of transferring of ownership in the works to a record company or producer.[5] This glimpse of protection, however, is short-lived when it comes to musical works in cinematographic films, considering that the producer has the ultimate copyright over such work.[6] Therefore, the right to royalty exists only if the musical work or literary work, i.e., lyrics were exploited by a non-film song.[7]
A recent & interesting dimension to this issue has also emerged with respect to the usage of famous artworks in films. In the making of the Hollywood movie ‘Woman in Gold’ which required the exhibition of a famous painting whose rights vested with a United States gallery, the producers instead chose to use photographs of such work to avoid negotiations with the gallery owners. While this was permissible since the copyright of the concerned photographer had not been infringed, it brings forth the increasing need to revisit the de minimis rule, which allows for small unrecognisable parts of famous works to be used in films.[8] As far as the performance of individual actors is concerned, copyright does not vest in them in light of such contract is in the nature of a contract of service.[9]
Who Owns What & Why?
The aforesaid components are the most commonly contested on matters concerning copyright ownership. As illustrated, however, the Indian copyright regime has actively endorsed the idea that producers of a cinematographic film are the ultimate holders of the copyright. This approach has been actively criticised by members of the film fraternity as it exhibits a complete disregard to the individual skill and effort put in by the various cast and crew members for the making of a film.
However, this ‘producer owns all’ approach has been advanced since time immemorial. This can be said to have found its roots in the ‘Auteur’ or author approach has evolved in the French copyright regime. Herein, initially, it was thought that the ultimate ownership of the copyright of the work, vests in the director for he is the supreme decision making authority, showcasing primarily his vision on screen.[10] However, the focus on producer as the ‘dominant author’ in such scenarios has been reinforced not only by Indian case laws but also recently by the USA as well in the case of Casa Duse, LLC v. Merkin[11]. It was held that even though the director may have a major role to play in terms of deciding the manner in which the film had to be shot, the copyright rests with the producer as they play a more dominant role in gathering the script, forming a third party or employment contracts with actors, etc. Such an approach has faced criticism; however, a noteworthy fact remains that ultimately, all kinds of economic risks accruing out of the making of a film is borne by the producers. By affording them all the rights & necessary protection seems justifiable, however, there is no escaping the fact that often while negotiating over contracts with composers, scriptwriters etc.; there is lack of caution on part of the latter when they ignorantly part with their rights over the work created essentially by them. The music composers as illustrated above may still claim royalty for non-film works; however, the contract makes a compelling difference when it comes to the right in relation to works used in films. In the end, it is the producer who faces the harshest economic brunt in case the film fails to do well, as compared to all other members involved. Therefore, the Hon’ble Supreme Court of India, as well as Courts in other jurisdictions have reiterated this position. A change, however, would be welcome, if in the case at least the right to claim royalty was not restrained only to being granted only for non-film works considering that majority of profits for composers can be earned through the songs they create for films.
[1] Cathy Jewell, “From Set to Screen: What Role for Intellectual Property?” (WIPO) http://www.wipo.int/ip-outreach/en/ipday/2016/ip_and_film.html accessed Jul 26, 2017 4:09 PM.
[2] Indian Copyright Act 1957, s 17(b), .
[3] Salim Khan & Ors v Sumeet Prakash Mehra & Ors [2013] 5 Bom CR 556.
[4] AIR [1977] SC 1443 .
[5] Dr. Kalyan C. Kankanala , “Ilayaraja v SP Balasubramanyam, Whose lyrics; Whose Music and Whose Copyrights?” http://www.bananaip.com/ip-news-center/ilayaraja-v-s-p-balasubramanyam-whose-lyrics-whose-music-whose-copyrights/ accessed Jul 26, 2017, 5:44 PM.
[6] CISAC v. Aditya Pandey [2016] SCC Online SC 967 .
[7] Indian Copyright Act 1957, s 19(10).
[8] Steve Knopper, “The Art of getting Permission to use Art in Film”, (the Chicago Tribune, 2 April 2015) http://www.chicagotribune.com/entertainment/movies/chi-woman-in-gold-art-20150402-story.html accessed Jul 26, 2017, 7:13 PM.
[9] Indian Copyright Act 1957, s17(c) .
[10]Film Reference, “Auteur Theory and Authorship”http://www.filmreference.com/encyclopedia/Academy-Awards-Crime-Films/Auteur-Theory-and-Authorship.html accessed Jul 26, 2017, 6:18 PM.
[11]791 F.3d 247 (2d Cir. 2015) .
(Chandni is currently a student at National Law University, Jodhpur)
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