Intellectual Property Rights and The Indian Entertainment Industry: An Overview
Over the years, the Indian Media & Entertainment Industry has witnessed immense progress in its use of technology and as a result, an increase in the Media that is being generated for the general public. The Entertainment Industry in India is said to be one of the largest in the world, producing thousands of movies in various regional languages. A multi-million dollar industry that is run by people’s creativity and artistry, the matter of Intellectual Property Rights, becomes a very crucial topic to discuss and understand.
Intellectual Property can be defined as a class of property that is a product of human intellect. It is intangible and provides the owner with exclusive rights over it. Creations of the mind, of any type such as literary, musical, or scientific inventions are included. Intellectual Property Rights can be broadly classified into Copyright, Trademark, Patents, and Design Rights.
One of the many challenges the Entertainment Industry faces is the violation of the above said rights, due to which legal issues tend to arise. One such common example of an IPR violation is, Piracy.
Copyright Law essentially covers all artistic and literary creations that are created by people. All subjects covered are referred to as, ‘Works.’ As per the definition of copyright under section 14 of the Copyright Act, 1957, it is the exclusive right over the content or work and the right to do or authorize the doing of certain acts in work. The basic aim is to offer protection against the unauthorized use of artistic, literary, and musical works such as songs, films, novels, etc.
In the Indian context, although it is preferable, it is not necessary for a person to register for copyright in order to get protection. The work must be expressed in a material form in order to profit from copyright law. To be actionable in court for infringement, the copy must be substantial and not small. Therefore, there would be no infringement if the two works’ themes were the same but presented in different ways.
In the case of, YRF v. Sri Sai Ganesh Productions[i], the infamous production house, Yash Raj Films (YRF), released the film, ‘Band Baja Baarat’ in December of 2010. It was learned by the plaintiff around December 2011, that Sri Sai Ganesh Productions intended to remake the film in Telugu. Subsequently, YRF issued two cease and desist notices to the defendants to which, they received no response. When eventually, Sri Sai Ganesh Productions released a trailer for the movie titled, ‘Jabardasth’ YRF issued the third legal notice requesting a copy of the movie before it was to be released. They then filed a suit against the defendants on the grounds of copyright infringement as they had outrightly copied the plot and theme of their movie.
The Court in this case held that copyright in a cinematograph film exists independent of the supporting works that it is comprised of, as each intrinsic work as well as the entirety of the film itself, are independent works. There is a substantial and material similarity between the scenes and plot points in the two films. For example, the screenplay and dialogues are literary works; song lyrics are musical works; whole songs are sound recordings; posters and ads are creative works, and so on. While each of these underlying works has independent copyright protection under the Copyright Act of 1957, a cinematograph film as a whole has the same rights. It was also observed that, the phrase, “to make a copy of the film” in section 14 of the Copyright Act refers to more than just producing physical copies.
Trademarks are a type of intellectual property right. Intellectual property rights enable individuals to retain ownership of their inventive products and creative efforts.
A trademark is a name, word, or sign that distinguishes goods from those of other businesses. Selling goods or services become easier with a trademark since product recognition with the trademark is assured and easier. The owner has the right to prevent another rival from using his mark or sign. A trademark is a marketing strategy that increases business financing. A trademark is not always a brand, but a trademark is always a brand. To establish a distinctive identity and stand out in a crowded market, film companies utilize trademarks. For example, Dharma Productions is a word trademark, registered to Karan Johar.
In the 20-year-long battle case of Sholay Media Entertainment v. Yogesh Patel[ii], the iconic film ‘Sholay’ was produced by the plaintiffs. The defendants were the members of the Patel Family who registered the domain, ‘www.sholay.com’, published a magazine under the same name, and also sold various merchandise exhibiting the scenes and names from the movie, ‘Sholay.’ The suit sought a permanent injunction restraining the infringement of their registered trademark ‘Sholay’ by the defendants.
The High Court of Delhi, in this case, held that a word like ‘Sholay’ associated with the title of an incredibly celebrate film, cannot be devoid of protection. Some films transcend the realm of conventional words, and the title of the film ‘SHOLAY’ is one of them. The Court stated that “The mention of the word ‘SHOLAY’ immediately creates a connection with the movie ‘SHOLAY’. There are industry estimates which claim that, although the words ‘SHOLAY’ may have a dictionary meaning in Hindi (specifically, ‘burning coal’), upon the movie-going public, the word ‘SHOLAY’ came to be associated only with the film.”
Hence, the court ended the twenty-year-long battle by providing relief to the makers of the film. Furthermore, the court barred the defendants from utilizing any photographs or clippings from the film, as well as selling products using the name SHOLAY or including any images from the film.
A patent is a right awarded to an individual in relation to an invention that prevents others from utilizing their idea without their permission. After work is patented, the inventor has 20 years to sell, use, distribute, make, import, or export it. In the entertainment industry, patents are typically utilized to protect technological advances in the production or delivery of material. The motion picture has always been at the confluence of innovation and enjoyment, blending audio, visual, and editing tools to creatively engage the audience. Patents act as the backbone of the technological advancement of any industry. The production of a film is a complex task that requires money to ensure quality in the various stages of its creation, such as editing, special effects, sound effects, lighting, and so on.
Design registration protects the shape, pattern, arrangement, ornamentation, or composition of particular lines or colors applied to the objects. The Design Act of 2002 protects any sort of design, including computer simulations, sketches, and fashion apparel and footwear creations. Characters come to life thanks to their costumes. Design registration can preserve those one-of-a-kind designs. In other words, it protects distinctive industrial designs created with the intention of commercialization, improvement, or enhancement of their aesthetic value. The Design Act governs everything.
Celebrity Rights in India
A celebrity is a well-known individual. In today’s society, a celebrity is defined as any author, actress, model, athlete, singer, politician, or another person who grabs the public’s attention. They are classified as celebrities based on how the public perceives and views them. They have a large following and affect many individuals professionally and in other ways. Before diving into the future of celebrity rights, it is necessary to first define them. In India, the understanding of personality rights may be traced back to the creation of common laws or classic natural laws, which established personality rights as an inherent right. It refers to a set of rights that includes the right to publicity, the right to prevent one’s image and likeness from being commercially exploited without permission or contractual compensation, and the right to privacy, the right to be alone and not have one’s personality publicly represented without permission. These rights are derived from Articles 19 and 21 of the Indian Constitution.
In the landmark judgment of Titan Industries Ltd. v. M/s. Ramkumar Jewellers[iii], the High Court of Delhi answered several questions regarding the ambiguous subject of Celebrity Rights. The case arose between the parties as a result of the infringement of copyright and misappropriation of personality rights. The Plaintiff, in this case, is Titan Industries who used the brand, ‘Tanishq’ for the purpose of Jewellery. This brand was endorsed by Mr. Amitabh Bachchan and Mrs. Jaya Bachchan. They had entered into an agreement and as per the terms, all Intellectual Property Rights created in the process of providing of services by Mr. and Mrs. Bachchan would vest with the Plaintiff. Subsequently, the defendant of this case had copied the artistic work of the Plaintiff’s hoardings with identical pictures of the celebrities. Hence, Plaintiff filed a suit.
The Court observed that when the identity of a famous personality is used for commercial purposes without seeking their consent, it amounts to infringement of the Right to Publicity. The Right to control the commercial use of an identity, vests with the person themselves. The elements that comprise the liability for infringement of the Right to Publicity are:
- Validity- The Plaintiff must own an enforceable right in the identity or persona of a human being.
- Identifiability- The Celebrity must be identified as a result of the Defendant’s improper usage. Violation of a celebrity’s right to publicity does not require proof of untruth, confusion, or deception, especially where the celebrity is identified. The right to public opinion goes beyond the customary boundaries of misleading advertising regulations.
Defendant’s culpability for infringement is based on the identifiability of Mr. Amitabh Bachchan and Mrs. Jaya Bachchan in the Defendant’s advertising. Identification and the Defendant’s mental state are inextricably linked. The Defendant’s use of Mr. Amitabh Bachchan and Mrs. Jaya Bachchan’s personality rights in its advertisement conveys a clear message of endorsement, which is false and deceptive. Furthermore, because Mr. Amitabh Bachchan and Mrs. Jaya Bachchan are easily recognized, there would be an infringement of the right to publicity because it is not linked to any proof of untruth. As a result, the case was decided in favour of the Plaintiff. The Defendant was barred from infringing on the Plaintiff’s copyright in the Tanishq commercial.
For the first time, Indian courts have issued a John Doe order, which protects illegal exploitation of a celebrity’s personality against known and unknown defendants. The order’s breadth is exceedingly broad, working against the entire world, making it easier for celebrities to assert their rights against any third party. This is especially beneficial against the unorganised sector, which has grown significantly in recent years and where infringement is prevalent. The ruling adds a new dimension to India’s intellectual property regime, notably in terms of personality rights. It can be said that this order may set a precedent and establish a more stringent legal framework for the enforcement of Celebrity Rights.
There is no exclusive right in India to allow public performances and broadcast them.
There is only provision for secondary rights to prevent public performance, broadcasting, or recording without the authorization of the performers and to earn appropriate recompense. As a result, while economic rights are available, moral rights do not exist. There is no protection against ‘substantial likeness,’ which is a fundamental component in the protection of celebrity rights. This rising problem can only be addressed through litigation. Massive damages and multi-million dollar settlements may put an end to infringement or violation by individuals who have previously failed to respect the privacy of celebrities and employers.
Whereas the judiciary has repeatedly recognized the existence of various aspects of celebrity rights, it is the responsibility of the legislature to statutorily recognize commercial aspects of celebrity rights in order to fill legal gaps and keep up with the rapid commercialization of celebrity status.
By analyzing the various landmark judgments in the context of IPR relating to the Indian Entertainment Industry, the need for IP Rights and its implications on the Industry can be understood well. It is the need of the hour for all members of the industry must protect the originality and creativity of content, increase knowledge about intellectual property rules, and discern the many types of violations and the changes made to the legislation, as well as the ramifications for the industry’s health. With the incoming of many more innovations in the industry such as the dominance of OTT Platforms, the need to understand and explore the many facets of IPR increases.
[i] 2019 (80) PTC 200 (DEL)
[ii] CS (OS) 1714/2001
[iii] CS(OS) No.2662/2011
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ARTICLE WRITTEN BY DIVYA SHREE GN