Aspects of copyright in a film

Introduction

A film can be thought of as an aggregated work created by several artists who have dedicated their careers to bringing a fictional work to life. Due to the involvement of numerous people, it is a difficult copyright work. It can be compared to a puzzle because, to create a beautiful final product, all of its pieces must be perfectly placed.

The plot and dialogue of a movie, the actors who play the roles, the kind of costumes and make-up used, the selection of a certain location, the music to evoke the correct emotions, etc., are crucial to ensuring a humorous experience throughout the movie. A movie is made by a variety of artists, including a writer, directors, cinematographers, actors, composers of music, editors, make-up artists, and dubbing artists, to mention a few. Without any of these contributors, a movie would be seriously lacking.

Copyright is a type of intellectual property right that gives the owner the sole right to use intellectual property. A product is referred to as “intellectual property” when it was made using only one’s mind. A piece of legal fiction called “copyright” gives the authors of a work a variety of rights. Copyright may be present in publications including novels, short stories, screenplays, computer programmes, databases, music, commercials, and more.

With copyright protection, the creator has the freedom to replicate their work or provide anyone else the same permission. By ensuring such protection, one can prevent others from copying and using one’s creation without the owner’s consent. Dramatic works, musical compositions, creative creations, cinematograph films, and sound recordings are all examples of works that can be protected by copyright.

Recognizing cinematographic films

This essay seeks to explore the various aspects of copyright in cinematograph films. A “cinematograph film” is any visual recording work with an accompanying sound recording, according to Section 2(f) of the Copyright Act of 1957. This definition is to be interpreted to cover any such work, such as video films made using techniques similar to cinematography. In order to increase its clarity, the definition of cinematograph film has undergone some changes.

Before the Copyright Act of 1957’s 1994 amendment, the clause simply stated that a cinematograph film contains the soundtrack and that a cinematograph refers to any work created using a method that is comparable to creating a cinematograph film. The purpose of the legislative body that amended the definition was to emphasise the requirement for originality in a visual recording in order for it to qualify as a cinematograph film in which copyright can exist. For there to be any chance of copyright protection, there must be some degree of uniqueness in the visual recording, such as in the case of CCTV footage. Copyright cannot exist in simply any visual recording.

A lovely explanation of cinematograph films can be found in Justice Krishna Iyer’s footnote to the Supreme Court’s ruling in the case of Indian Performing Right Society v. Eastern India Motion Picture Association (1977):

“A cinematograph film is a felicitous synthesis, a lovely whole… Cinema is more than long celluloid strips, photographic marvels, song, dance, and dialogue. It is also more than a compelling narrative, an intriguing plot, tense circumstances, and outstanding performances. However, the final result of each participant’s organised performance is the ensemble, even though the individual parts may occasionally be beautiful things in and of themselves.

As a result, a cinematographic film is more than just a collection of videos and images. It is the creation of various artists who came together to make a piece of art. Their artistic prowess is evident in it. As was already mentioned, numerous contributors put in a lot of work to designate a film. Who owns the copyright to a film if so many individuals participate to its creation? And maybe more crucially, does a film’s creative team of writers, directors, and actors own any copyright in it?

Reasons for copyright

Understanding the importance of having a copyright is crucial. It is crucial to grasp why to own it in order to comprehend who can own it more clearly. The benefits of having copyright on a piece of work allow the owner to use and profit from it. In addition to the apparent benefit of protection, holding a copyright grants the owner of the work the freedom to copy, perform, distribute, and translate the work. Simply put, it grants the owner of the unique creation a monopolistic right. Take Paulo Coelho’s book “The Alchemist” as an example. Written in Portuguese, it was initially released in 1988.

Because of how well-known the book became, it has now been translated into more than 80 other languages. There have also been CD booklets and stage adaptations of it. Additionally, a film version of the book is in the works as well. It should be emphasised that none of these translations could have taken place without the author Paulo Cohelo’s permission because he owns the copyright to his creation.

A person may easily be sued for copyright infringement by the author if they were to steal the story from the book and distribute it under their own name. In accordance with Sections 57(1)(a) and 57(1)(b) of the Copyright Act, 1957, possessing a copyright also confers other moral rights, such as paternity rights and integrity rights.

Thus, Section 57 of the Copyright Act of 1957, which was added in accordance with Article 6bis of the Berne Convention of 1886, mentions moral rights. All inherent rights that a person possesses in their creation that are reflective of the personality of the creator are collectively referred to as moral rights.

In contrast to integrity rights, which give authors the power to stop others from altering their creations in any way, paternity rights are the author’s legal claim to authorship or ownership of their work. In connection with such alterations, the author is also entitled to damages. The integrity of the work is essentially protected by this privilege. As long as the copyright is in effect, which is typically during the author’s lifetime and an extra 60 years after death, the author is entitled to moral rights.

Author in the Copyright Act of 1957: Definition

Understanding the definition of an author under Section 17(b) of the Copyright Act, 1957 is essential to determining who owns the copyright to a cinematograph film. This clause states that, absent a conflicting agreement, the person at whose request a cinematograph film is made for valuable payment is the work’s author. This definition makes it clear that a producer owns the copyright to a cinematograph film because it is at the producer’s request that a cinematograph film is created for valuable consideration.

A producer is defined under Section 2(uu) of the Copyright Act of 1957. It emphasises that a person must have initiative and responsibility in order to be referred to as a film producer. The need for initiative and accountability was emphasised by S.J. Kathawalla, J. in Ramesh Sippy v. Shaan Ranjeet Uttamsingh & Ors. (2013).

The court further stated that it is important to consider who has assumed responsibility for making arrangements, particularly in a financial sense, when determining who is the author of a film. This demonstrates the significance of a person’s financial contributions and arrangements for the issue of identifying the author. Unfortunately, it has become the law to refer to a producer or production firm as a “author” when their only contribution to the creation of a movie was financial and not creative.

But what about the different parties involved in making a cinematographic film who only provide artistic, not financial, input? Do they possess any copyrights? A film is not simply made with money; it is also made with creativity, which manifests itself as a piece of art.

Some aspects of Copyright in cinematograph films

Recognizing the rights of directors

The producer is the one in whom the copyright to the film as a whole subsists, meaning that several authors do not each have their own independent copyright in a film. However, copyright may exist independently in some underlying works of a film, such as the novel or biography on which the film is based, music, choreography, script, and so on. However, it cannot exist without some of the significant contributions that go into directing, shooting, editing, and other aspects of the movie. A lot of people think that the director ought to own the copyright. At this point, it’s crucial to bring up the “Auteur Theory.”

Alfred Hitchcock, one of the most significant people in movie history, put out this viewpoint. He claimed that a director is a movie’s genuine author because the movie is a reflection of the filmmaker’s ideas and personality. He asserts that a director’s signature visual cues and recurrent motifs reveal their identity to the spectator in a film. Anurag Kashyap, for instance, has a consistent aesthetic and topic throughout all of his films, making it easy for viewers to recognise who the filmmaker is if they see one of his movies.

The personal touches in the movies directed by Quentin Tarantino, Sanjay Leela Bhansali, and Karan Johar also offer the viewer a sense of the filmmakers’ personalities. However, the “Auteur Hypothesis,” despite playing a crucial role in opening discussions about a director’s authorship in film, is still just a theory.

We must look at precedents in order to comprehend the copyright in a cinematograph film, which is simply legal fiction. In the case of Sartaj Singh Pannu v. Gurbani Media, the copyright of a filmmaker in a movie was one of the first issues to be addressed. The case is Kabir Chowdhry v. Sapna Bhavnani & Others (2021). The question was whether any involvement a person has in a movie gives them ownership of the movie’s copyright. In relation to a cinematograph film, the court noted that:

1. the author is the copyright’s original owner;

2.The producer is the author’s intended audience (and no one else);

3.The producer is the individual who has seized the initiative and accepted accountability for creating the work

The court emphasised the producers’ “financial investment” and “risk of suffering losses” and stated that although the director is involved in every step of the production of the movie, the producer is the one who writes the script. The Court also mentioned the auteur’s vision of the work and stated that in order for someone to be a co-producer, they must have taken the initiative to conceptualise the work in order to bring it to life, and there must be a risk element in the nature of their responsibilities.

In the very recent case of S.J. Suryah (also known as S. Justin Selvaraj) v. S.S. Chakravarty & Anr. (2021), it was debated whether a person receiving credit for writing or directing a movie has the right to assert original ownership of the script, screenplay, or dialogue in the absence of a written agreement. In this case, the appellant/plaintiff was unable to establish his copyright claim beyond a reasonable doubt. The producer’s simple acknowledgement of the filmmaker’s or writer’s work would not be sufficient for them to assert copyright, the court ruled. The court relied on statutory requirements to reject the request for an interim injunction against the producer since there was no evidence to support the appellant’s or claim plaintiff’s assertion that he had retained his rights.

It should be noted, though, that a director does more than just give orders to or direct the various creatives working on a film. Nevertheless, it is entirely up to him or her to coordinate everyone’s efforts in order to produce a powerful piece of art. A director is not only a producer’s agent who carries out his or her instructions. Contrarily, the director has creative liberty and is in charge of conceptualising and producing through working with a variety of creatives.

Understanding the rights of writers

The writer is one of the most underappreciated actors in a movie. The fictional universe of a writer comes to life in a movie’s plot. By developing characters and using these personalities to tell a story, he or she gives this make-believe world more life. The entire basis of a movie is the author’s story. Unfortunately, authors are rarely given enough credit and appreciation for their work when it comes to movies. The names of the directors and producers of movies are frequently used to promote them, but rarely are the identities of the writers revealed.

According to Section 17 of the Copyright Act of 1957, as was previously mentioned, unless a contract specifies otherwise, the author of a work produced while an employee is employed is the employer. According to Section 17, a writer is not considered to be the author of a cinematograph film. The producer is frequently given ownership rights to the scripts. The material that is created using ideas is where copyright actually exists.

Copyright exists in things like books, biographies, novels, etc. that writers have used to transmit their thoughts. The individual who comes up with a fantastic concept is not the proprietor of the copyright unless he created work through such idea, according to the decision in Donoghue v. Allied Newspaper (1937).

It is not necessary to register copyright; it exists the moment a concept is implemented. The certificate of registration of copyright serves as prima facie evidence in cases of conflict or copyright infringement, hence it is advisable to copyright one’s work. Typically, upon screenplay clearance, these writer rights are fully or partially given to the film producer, and they are typically subject to restrictions for the whole of the copyright or any term thereof. Unless there is a contract to the contrary between the author of such work and the producer of the film, if the script is incorporated into a film, the producer becomes the first owner of copyright in such an underlying work.

Prior to the Copyright Amendment Act of 2012, the producer was favoured under the law governing royalties. It was claimed that any underlying work—musical or literary—included in a cinematograph film or sound recording was regarded as having been produced under a “contract of service” under Section 17, and as a result, the producer or employer received the copyright to such work. This meant that the writer was only entitled to the initial assignment fee and had no further rights to the producers’ later profits, even if they generated enormous sums of money using the writer’s original works.

A writer’s contributions were undervalued, and contractual agreements were given too much weight, giving producers disproportionate bargaining power in comparison to writers. The Copyright Amendment Act of 2012, on the other hand, represented a paradigm shift for writers’ rights. The Act’s Sections 18 and 19 were amended to include provisions for the writer’s claim to royalties.

The proviso to Section 18 now requires an equitable distribution of royalties in the event that the underlying work (a literary or musical composition) is used for any purpose other than a theatrical presentation. This means that the screenwriter has the legal right to receive royalties if a movie script is licenced to be utilised for a Netflix series. Furthermore, a contract cannot expressly waive or assign this right.

According to Section 19(9) of the Copyright Act of 1957, the author’s right to receive royalties is unaffected if they assign the copyright to a third party. Consider a scenario in which Dharma Productions transfers the copyright of “Kabhi Khushi Kabhi Gum” to another production company. The writer of the film will still be able to obtain royalties as a result of this.

It is important to remember that these changes will take effect in the future, as was determined in the Salim Khan v. Sumeet Prakash Mehra case. Screenwriters are still constrained by one-sided contracts and unable to reap the actual rewards of their labour, even after the modification. Even today, screenwriters only receive a small portion of the money produced by the film’s secondary exploitation after it has played in movie theatres rather than the full royalties.

The appellant in Thiagarajan Kumararaja v. Capital Film Works (2017) was the film “Aaranyakaandamscriptwriter “‘s and director. The producer attempted to dub and remake the film despite the appellant’s failure to assign their copyright in the script, and this prompted the filing of the lawsuit. Regarding remake

s, it was decided that the producer had no right to do so because doing so would effectively necessitate making changes to the screenplay that were not delegated to him or her. The court approved dubbing, stating that sound recording is a component of the picture and the producer has exclusive rights to it.

The definition of moral rights was defined in the seminal case of Amarnath Sehgal v. Union of India (2005). The plaintiff was a renowned sculptor who was given the job of creating a mural for the Indian government to hang in the Vidhan Sabha. The mural was afterwards taken by the Government of India and kept in a storage room without the plaintiff’s knowledge or consent. Due to carelessness and improper handling, the mural also sustained some damage. The Government contended that they had sole right to choose how the work was to be used because it was commissioned and given proper consideration.

The court disagreed, ruling that even when a work is sold, the creator retains all moral rights to it that are guaranteed by Section 57 of the Copyright Act of 1957. Regardless of who the owner is, the mural’s removal and mutilation were detrimental to its author. As a result, such an act was deemed to violate the author’s rights. The soul of artistic expression was thus preserved by this decision.

Mannu Bhandari v Kala Vikas Pictures Pvt. Ltd. (1986). established that, even if the artist has assigned rights, remedies such as injunctions and damages may still be sought under Section 57 of the Act on the basis of moral rights. In order to ensure that the film business is fair for everyone, Section 57 must be read in the context of writers and directors while taking into account current changes.

Conclusion

The purpose of intellectual property laws is to safeguard a person’s creative work. It goes against the fundamentals of giving intellectual property rights to base a right such as copyright on the financial considerations. It is abundantly evident from the discussion above that the producer of a picture has a greater advantage when it comes to copyright vesting. Without a doubt, the producer plays a crucial role, but we cannot ignore the persistent efforts of other creative contributors by giving the producer the copyright. Paying for something to be made and actually investing in making something are two distinct things. IPR aims to safeguard intellectual labour, so it seems sense to give it more consideration when determining who owns the copyright.

When addressing the issue of copyright, the authors of the underlying works and the director are taken into consideration secondarily. To give these creators the credit they deserve, the definition of “author” could be broadened. What could be done is give other significant creatives involved in a film’s production shared authorship. A principal director is also the co-author and co-owner of the copyright, according to the UK Copyright Act, 1988.

Despite the fact that the laws of the UK have had a significant influence on those of India, we have failed to incorporate an equitable basis into our legal system. Additionally, it is widely accepted that the producer has greater negotiating power than other creators like the writer or the director. But what we frequently forget to take into account is that, depending on their prominence, various creatives also have varying bargaining powers.

For instance, a well-known author has more negotiating power than a new author, therefore it stands to reason that the former has more rights to his underlying work. Making sure that diverse creatives have protection for their work also means making sure that the type and extent of that protection does not depend on the bargaining power of any one particular creative.

Thus, the Copyright Act of 1957 should be amended to include uniform laws. The rights of producers of cinematograph films must be restricted by the courts. Despite the 2012 amendment’s assurances that creators’ rights would be protected, their rights are still not effectively protected. This also asks for the Copyright Act of 1957 to undergo the required revisions.

References

1. https://www.asialaw.com/NewsAndAnalysis/copyright-infringement-in-cinematographic-film/Index/334
2. https://rmlnlulawreview.com/2017/08/25/lights-camera-copyright-identifying-parts-of-a-cinematographic-film-and-justifying-its-authorship/
3. https://guides.libraries.indiana.edu/c.php?g=158548&p=1176292
4. https://thelegallock.com/copyright-claims-in-film-industry

BY: Shraddha Sharma (Law Graduate from Sardar Patel Subharti Institute of Law, Meerut)