Copyright Protection in Indian Cinema: A Comprehensive Analysis

Introduction
Copyright is a form of intellectual property law that grants creators the exclusive rights to their original
works of authorship. These rights are automatically granted upon the creation of the work and generally last
for the creator's lifetime plus a certain number of years thereafter, depending on the jurisdiction. Copyright
laws play a crucial role in the film industry, as they protect the creative works of filmmakers, writers,
directors, and other contributors involved in the production of a film. These laws grant creators exclusive
rights to their work, including the right to reproduce, distribute, perform, and display their creations. In the
context of the film industry, copyright laws cover various elements such as the screenplay, dialogues, music,
cinematography, and other aspects of the film.
India is a signatory to various international treaties and agreements related to copyright, including the Berne
Convention for the Protection of Literary and Artistic Works and the Agreement on Trade-Related Aspects of
Intellectual Property Rights (TRIPS). These treaties help harmonize copyright laws globally and provide
minimum standards of protection.
Copyright protection in Indian cinema is governed primarily by the Copyright Act, 1957, which provides
exclusive rights to creators while balancing public interest through specific exceptions and defences. The
film industry, being a collaborative artistic endeavour, presents unique challenges in copyright protection
and enforcement.
The Indian Copyright Act of 1957 protects and recognizes cinematograph films as a form of creative work.
Cinematograph films are a type of motion picture created using a device called a cinematograph, which
projects a series of images in quick succession to give the illusion of motion on a screen. According to
Section 2(d)(v) of the Copyright Act, the producer of a cinematograph film is considered the work’s creator.
The creation of a movie involves collaboration between multiple individuals including the director, actors,
composer of the soundtrack, and screenwriter, but under copyright law, only the producer is considered the
film’s sole creator and owner. This preference for producers in copyright law has recently been questioned.
Disputes over the rights to the script and music used in the movie have arisen between producers and other
contributors such as scriptwriters and musical composers.
Definition and Basic Concepts
Author (Section 2(d))
1. In relation to literary or dramatic work: The person who creates the work
2. In relation to musical work: The composer
3. In relation to artistic work other than photograph: The artist
4. In relation to photograph: The person taking the photograph
5. In relation to cinematograph film: The producer
6. In relation to sound recording: The producer
7. In relation to computer-generated work: The person who causes the work to be created
Owner (Section 17)
1. First owner of copyright: Generally the author of the work
2. Exceptions where the first owner is different from the author:
 o Work created during course of employment
o Commissioned works
o Government works
o Public undertaking works

Copyright Protection in Films

Copyright and Idea
Copyright does not apply to mere ideas, but rather to the expression of such thoughts/ideas in a tangible
form. Only the material form in which the ideas are translated is protected by Copyright. Two authors may
come up with the same idea, but the difference lies in how they are put into the physical form and
communicated to the public. The test to decide what constitutes infringement was laid out in India until the
case of R.G. Anand v. M/s Delux Films and others (1978). The decision marked the beginning of a new era
under the Copyright law, clarifying that copyright does not apply to mere ideas, but rather to the expression
of it. It was explained that even though both the play and the movie had similar themes, it would not mean
that the original play had been infringed. The court also discussed the principle ‘Scène À Faire’, translating
to “scene to be made”, which essentially means that certain creative works are held to be not protectable
because they are mandated by or are customary to a particular genre, like dark themes in horror movies. The
following principles were established in the landmark judgement and supported the idea-expression
doctrine-
 No copyright exists in an idea, subject matter, themes, plots, facts and events, but rather in the
arrangement, manner and expression of the idea.
 To determine if copyright infringement has occurred, the court shall observe whether the defendant’s
work is nothing but a literal imitation of the copyrighted work with trivial or minor variations.
 When the reader/viewer gets an unmistakable impression that the subsequent work appears to be a
copy of the original.
 No question of copyright violation arises in case a work is presented and treated differently, such that
it becomes completely novel, regardless of the theme being the same as the other work.
 No infringement of copyright has occurred if dissimilarities are evident in another work, negating the
intention of copying the original

IS THE ORIGINALITY OF THE CINEMATOGRAPH FILM ESSENTIAL FOR A

COPYRIGHT?

When it comes to the copyrights of literary, dramatic, musical, and artistic works, the copyright act
stipulates that such creative work must be “original” to qualify for the protection of copyright. It is
nowhere explicitly mentioned in the act about the “originality” of the film. But according to section
13 (3) (a) copyright act 1975, the copyright cannot be protected if a substantial part of the film is an
infringement of the copyright of any other work.

In the case, MRF Ltd. v. Metro Tyres Ltd. it was held under Sec 13 of the Act, a film must be an
“original work” in order to be granted a copyright. To create a film that is a copy of the original film
without the owner’s permission is an infringement of the copyright.
Scope of Protection
 Films are protected as cinematograph films under Section 2(f) of the Copyright Act
 Protection extends to the entire film as an audio-visual work
 Separate copyright exists for various components:
o Screenplay
o Musical score
o Sound recording
o Literary work (dialogue)
o Artistic work (sets, costumes)
COPYRIGHT LAWS AND INDIAN FILM INDUSTRY:
Copyright laws have a significant impact on the Indian film industry, influencing various aspects of
filmmaking, distribution, and revenue generation.
 Protection of Creative Works: Copyright laws provide filmmakers, writers, directors, composers,
and other contributors with legal protection for their creative works. This protection incentivizes
investment in filmmaking by ensuring that creators can control the use and exploitation of their
works and receive fair compensation for their efforts.
 Economic Importance: The Indian film industry, often referred to as Bollywood, is one of the
largest and most influential film industries globally. Copyright laws play a crucial role in
safeguarding the economic interests of filmmakers and producers by preventing unauthorized
copying, distribution, and exploitation of their films.
 Revenue Generation: Copyright laws enable filmmakers to monetize their films through various
revenue streams, including theatrical releases, television broadcasting, streaming platforms, home
video sales, merchandising, and licensing deals. The exclusive rights granted by copyright laws
allow filmmakers to negotiate favorable terms and maximize their earnings from these revenue
sources.
 Combating Piracy: Piracy poses a significant threat to the Indian film industry, resulting in revenue
losses and undermining the viability of filmmaking projects. Copyright laws serve as a deterrent to
piracy by establishing legal frameworks for enforcement actions against individuals and entities
engaged in the unauthorized reproduction, distribution, or public performance of copyrighted films.
 International Distribution: Copyright laws facilitate the international distribution of Indian films
by providing legal protection for filmmakers' intellectual property rights in foreign markets. This
protection is essential for securing distribution deals, negotiating licensing agreements, and ensuring
that filmmakers receive royalties from overseas screenings and sales.
 Encouraging Innovation and Creativity: Copyright laws encourage innovation and creativity in
the Indian film industry by rewarding filmmakers for their original works. The prospect of copyright
protection motivates filmmakers to experiment with new storytelling techniques, visual effects,
music compositions, and other creative elements, driving the growth and diversification of Indian
cinema.
 Balancing Interests: Copyright laws strike a balance between the interests of copyright holders,
content creators, distributors, and consumers. While copyright protection grants exclusive rights to
filmmakers, it also incorporates fair use provisions and limitations on copyright to safeguard the
public's right to access and use copyrighted works for purposes such as criticism, review, education,
and research.
  Legal Compliance and Contracts: Copyright laws require filmmakers and production companies to
comply with legal obligations related to copyright registration, licensing agreements, and contractual
arrangements with cast and crew. Understanding copyright laws is essential for filmmakers to
navigate legal issues, protect their intellectual property rights, and avoid potential litigation
Rights of Copyright Holders
1. Right to reproduce the film
2. Right to issue copies to the public
3. Right to perform/communicate the film
4. Right to make adaptations
5. Right to sell or give on commercial rental
Exceptions and Defences
Fair Dealing (Section 52)
1. Private use including research
2. Criticism or review
3. Reporting current events
4. Educational purposes
Other Exceptions
1. Parody and satire
2. Incidental inclusion of copyright work
3. Use in judicial proceedings
4. Performance in religious ceremonies
5. Use by non-profit clubs or societies
Conflicts of copyright in cinematograph films

Members of the film community have openly criticised this strategy since it shows a complete
disrespect for the individual talent and work put in by the numerous actors and crew members during
the production of a film. But this “producer owns all” strategy has existed since the dawn of time.
This might be attributed as having its origins in the French copyright system’s “Auteur” or author
approach. In this case, it was once believed that the director ultimately owned the copyright to
the work because he was the supreme decision-maker and predominantly displayed his vision on
screen. However, this remained in theories only except in UK where directors are identified as co-
authors. 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 2015 It was decided that even while the director may have a significant say in
how the movie should be filmed, the producer owns the copyright because they are more heavily
involved in gathering the script, creating third parties or employment contracts with performers, etc.
Such a strategy has drawn criticism, but it is important to remember that producers are ultimately
responsible for all financial risks associated with film production. Giving them all the rights and
protection they require seems justified, but there is no getting around the fact that when negotiating
contracts with composers, scriptwriters, and others, the latter frequently show a lack of caution when
they blithely cede their rights to the work that they were primarily responsible for creating. The
contract makes a significant difference when it comes to the right in respect to works utilised in films,
even though the music composers in the example above may still assert a royalty claim for non-film
works. In the end, relative to all other parties involved, the producer bears the brunt of the financial
pain if the movie is a financial failure. In light of this, the Hon’ble Supreme Court of India and courts
in other countries have maintained this stance. However, a change would be appreciated if, at the very
least, the ability to claim royalties was not restricted to being awarded exclusively for non-film works
given that composers might make the majority of their money from the songs they write for movies.

The script of a movie is considered a literary work and has its separate copyright, which is one of
several compositions in the movie that are protected by copyright. Music compositions are also given
their unique copyright protection . Recently, there have been instances of disputes between film
producers and scriptwriters or musical composers over rights such as remakes, dubbing rights,
etc. Another issue is that film directors are not recognized by copyright laws, leading some to argue
that both producers and directors should have co-authorship. The Copyright (Amendment) Act of
2012 was enacted to establish a fair and rational system for copyright administration, and revenue
sharing, and to protect the rights of those involved in audio and video recordings. This act reinforced
the existing stance that the producer is the author, as opposed to the Copyright (Amendment) Bill of
2010 which would have recognized the principal director as a co-author of the composition

The relevant provisions under the Indian Copyright Act,1957

As per the practice before 2012, the authors of underlying works [musical and literary works] used to
assign their rights to the producers and huge music labels against big or small pay-outs. This meant
that even if the song did well, the authors would not get any benefit or money for that success. The
following changes in the Act ensured that authors of the works got royalties from its exploitation-

 Two new provisos were added in Section 18 which ensured that the royalties are being paid to
the author even after they have been assigned by them-

“Provided also that the author of the literary or musical work included in a cinematograph film
shall not assign or waive the right to receive royalties to be shared on an equal basis with the
assignee of copyright for the utilization of such work in any form other than for the
communication to the public of the work along with the cinematograph film in a cinema hall,
except to the legal heirs of the authors or to a copyright society for collection and distribution
and any agreement to contrary shall be void”

 Subsection 3 of Section 19 clearly states that the agreement shall mention the amount of
royalty payable to the author.

“The assignment of copyright in any work shall also specify the amount of [royalty and any
other consideration payable], to the author or his legal heirs during the currency of the
assignment and the assignment shall be subject to revision, extension or termination on terms
mutually agreed upon by the parties.”

 Subsection 9 of Section 19 talks about if the author has assigned his right to make a
cinematograph film based on his work, he is entitled to claim royalties and consideration along
with the assignee for the utilisation of the work. Subsection 10 of the same Section gives the
same rights to the author for a sound recording.
 Section 38 (A) (2) of the Act talks about the rights of the performers. It states that a performer
is entitled to royalties if their work is made for commercial use.

Producer:
  Primary Copyright Owner: The producer is usually considered the primary copyright owner
of the entire film. This includes the script, direction, cinematography, editing, and overall
production.
 Contractual Agreements: However, the producer often enters into contractual agreements
with various contributors, such as the director, actors, music composer, lyricist, etc., to acquire
specific rights to their creative contributions.

Director:

 Moral Rights: The director retains certain moral rights, such as the right to be credited for
their work and the right to object to distortions or mutilations of their film.
 Contractual Agreements: The director's specific rights and ownership can vary depending on
their contract with the producer. Some directors may negotiate for additional rights, such as
ownership of the screenplay or director's cut.

Actors:

 Performance Rights: Actors have performance rights, which protect their specific
performances. However, these rights are typically limited and do not extend to the entire film.
 Contractual Agreements: Actors' contracts with the producer often outline their rights,
including compensation, publicity rights, and any ownership interests in their performances.

Music Composer and Lyricist:

 Copyright in Musical Composition and Lyrics: The music composer and lyricist own the
copyright to their respective contributions.
 Licensing Rights: They grant licenses to the producer to use their work in the film
 Royalty

Writer- moral right, royalty

Work-for-Hire Agreements: These agreements are common in the film industry. They specify
that the work created is considered "work for hire," meaning the copyright belongs to the employer
(the producer).

Moral Rights: Despite transferring the copyright, the writer retains certain moral rights, such as
the right to be credited for their work and the right to object to distortions or mutilations of their
script.

Royalties and Remuneration: The writer's contract with the producer will outline the terms of
payment, including upfront fees, royalties, and residual payments.

Residual Payments: These are additional payments made to the writer when the film is re-
released, aired on television, or used for other purposes.

Important Case Studies

Case Study : R.G. Anand vs M/S. Delux Films
Facts:
The plaintiff, R.G. Anand, was the author and playwright of the play "Hum Hindustani". The defendant,
M/S. Delux Films, produced a Hindi film titled "New Delhi" which the plaintiff claimed had substantially
copied portions of his play. Both works dealt with the central theme of anti-provincial prejudice.
Issues:
1. Whether there was substantial copying of the plaintiff's play by the defendant's film.
2. How to determine the extent of copying when the works are in different mediums (stage play vs
film).
3. The limits of copyright protection for thematic similarities in creative works.
Held: The Supreme Court ruled in favor of the defendant, holding that there was no copyright infringement.
The court established important principles for comparing works in different mediums:
 The theme or idea alone cannot be copyrighted, only the specific expression of that theme.
 Similarities in basic plot or treatment are not enough to constitute infringement if the works have
distinct execution and "look and feel".
 Copyright does not extend to general themes, subject matters, or generic treatment, even if the works
deal with similar subjects.
 The court must consider the works as a whole and look at the cumulative effect, rather than
dissecting and comparing individual elements.
The court found that while there were some thematic and generic similarities, the defendant's film had a
distinct execution, setting, characters, and treatment that differentiated it from the plaintiff's play. Therefore,
it did not amount to a violation of the plaintiff's copyright.

Case Study 2: Twentieth Century Fox Film Corporation vs Sohail Maklai Entertainment
Facts: Twentieth Century Fox Film Corporation owned the rights to the 2002 film "Phone Booth".
Defendant Sohail Maklai Entertainment was producing a film titled "Knock Out" in 2010. Fox alleged that
the defendant's film had substantial similarity in plot, sequence, and characters compared to the Fox film
"Phone Booth", where the protagonist was trapped in a phone booth by a sniper.
Issues: 1) Whether an interim injunction should be granted to Fox to prevent the release of the defendant's
film "Knock Out". 2) How to determine substantial copying in the thriller genre where certain plot elements
and character tropes may be common. 3) The balance between providing copyright protection and allowing
creative freedom within established genre conventions.
Held: The court granted the interim injunction in favor of Twentieth Century Fox. The court found that there
was substantial similarity between the two films, particularly in the progression of the plot and the treatment
of the central premise of a protagonist trapped in a phone booth by a sniper. The court recognized that while
certain thriller elements may be common, the specific expression and sequencing of these elements in
"Phone Booth" was protected under copyright law. The court balanced the need to protect Fox's creative
work against allowing reasonable creative latitude within the thriller genre.

Case Study 3: MRF Limited vs Metro Tyres Limited

Facts: MRF Limited, a prominent Indian tyre manufacturer, created an advertisement showcasing various
motorcycle stunts and slow-motion sequences. The advertisement featured technical camera techniques like
dynamic angles, close-ups, and seamless transitions to capture the bike's movements in an engaging manner.
Later, a competing tyre company, Metro Tyres Limited, released a similar advertisement that bore substantial
visual resemblance to the MRF advertisement. The MRF advertisement had garnered significant popularity
and acclaim prior to the release of the Metro advertisement.
Alleging copyright infringement, MRF approached the court, claiming that Metro had copied the creative
expression and cinematic elements of its advertisement without authorization.
Issues:
1. Whether cinematographic techniques and visual elements used in advertising films can be protected
under copyright law.
2. The extent of copyright protection available for advertising films, particularly with regard to the
distinction between technical necessities of the medium and creative expression.
3. The legal test to be applied in determining substantial similarity between two advertisements for the
purpose of establishing copyright infringement.
Held: The court recognized that advertising films, just like any other cinematographic work, are
eligible for copyright protection under Indian law. However, the court also emphasized the need to
distinguish between technical elements essential for filming the advertisement and the creative expression
that can be claimed as the author's original work.
The court established that while the overall visual style, camera angles, sequencing, and other creative
elements of the advertisement were protected by copyright, the specific technical requirements of filming
motorcycle stunts and slow-motion sequences were not copyrightable. These technical elements were
deemed to be inherent to the medium and necessary for achieving the desired cinematic effect.
In analyzing the two advertisements, the court found substantial similarity in the creative elements, such as
the treatment of the visuals, the narrative flow, and the overall aesthetic appeal. The court held that Metro's
advertisement had infringed upon the copyright in MRF's original advertisement, as it had copied a
significant portion of the creative expression without authorization.
Consequently, the court restrained Metro Tyres from using the infringing content in its advertisement and
awarded damages to MRF Limited.
Aditya Chopra vs. Yash Raj Films
Facts: Aditya Chopra, the acclaimed director of the Bollywood film "Dhoom 3", filed a suit against Yash Raj
Films (YRF), the production company that owned the rights to the "Dhoom" franchise. Chopra claimed that
as the director, he held the primary creative rights over the film and should be entitled to a share of the
profits generated. YRF, as the copyright holder, disputed Chopra's claims, arguing that the director's role was
limited to executing their creative vision and that the company owned all the rights as the producer.
Issues: The key issues in this case were:
1. Whether the director of a film can assert ownership rights over the final work, despite the production
company holding the copyright.
2. The extent of a director's creative control and their right to a share in the commercial success of a
film.
3. The balance between the producer's economic rights and the director's artistic rights.
Held: The Delhi High Court ruled in favor of Aditya Chopra, establishing several important principles:
 The director is the primary creative force behind a film and holds certain moral rights over the work.
 Directors have a right to be credited and recognized for their creative contribution.
  Directors are entitled to a fair share of the profits from a film's commercial success, even if they do
not own the copyright.
 The producer's economic rights must be balanced against the director's artistic rights and creative
control.
The court ordered Yash Raj Films to share a percentage of the profits from "Dhoom 3" with Aditya Chopra,
acknowledging his significant creative role in shaping the final product. This landmark decision has since
influenced industry practices and negotiations between directors and producers in the Indian film industry.

Raj Kumar Gupta vs. Viacom18 Media Pvt. Ltd., Civil Appeal No. 4355 of 2021
Facts: In 2021, acclaimed director Raj Kumar Gupta filed a petition in the Supreme Court against media
conglomerate Viacom18. Gupta had directed the critically acclaimed film "No One Killed Jessica" for
Viacom18 in 2011. However, Viacom18 later produced a spin-off web series based on the same story
without Gupta's involvement or consent.
Gupta claimed that as the director of the original film, he held the primary creative rights over the story and
characters. He argued that Viacom18 could not unilaterally create a derivative work without his approval, as
this violated his moral rights as the author.
Issues:
1. Whether a director retains creative control and moral rights over a film, even after its commercial
exploitation by the producer.
2. The extent to which a production company can create derivative works based on a director's original
creation.
3. The balance between a producer's commercial interests and a director's artistic rights.
Supreme Court Verdict: In a landmark judgment, the Supreme Court ruled in favor of director Raj Kumar
Gupta, establishing the following key principles:
1. A film director is the primary author and creative force behind a cinematic work, and therefore holds
significant moral rights over the final product.
2. Production companies cannot create derivative works or spin-offs based on a director's original
creation without the director's consent, as this would violate the director's moral rights.
3. Directors have the right to protect the integrity of their artistic work and prevent any distortion or
modification that could harm their reputation or creative vision.
4. The producer's commercial interests must be balanced against the director's moral rights and creative
control over the work.
The Supreme Court ordered Viacom18 to obtain Raj Kumar Gupta's approval before proceeding with the
spin-off web series, upholding the director's creative rights and artistic integrity.