Intellectual Property Rights and The Indian Entertainment Industry: An Overview

By: Aditi Sharma, Advocate

Over the years, the Indian Media and Entertainment Industry has witnessed immense progress in its use of technology and, as a result, increased media 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 run by people’s creativity and artistry, the matter of Intellectual Property Rights becomes a 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 typical example of an IPR violation is Piracy.

Copyright Law

Copyright Law covers all artistic and literary creations that people create. 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 authorise the doing of certain acts in work. The primary aim is to offer protection against the unauthorised use of artistic, literary, and musical works such as songs, films, novels, etc.

In the Indian context, although it is preferable, a person doesn’t need 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 identical but presented differently.

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 2010. The plaintiff learned 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 Sri Sai Ganesh Productions eventually released a trailer for the movie, ‘Jabardasth’, YRF issued the third legal notice requesting a copy before it was 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 comprises, as each intrinsic work and the entirety of the film itself are Separate. The two films have a substantial and material similarity between the scenes and plot points. For example, the screenplay and dialogues are literary works; song lyrics are musical works; whole songs are . ; posters and ads are creative works, and so on the same time, 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.

Trademark Law

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 distinguishing goods from other businesses. Selling goods or services becomes more accessible with a trademark since product recognition is assured and more straightforward. 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. Film companies utilise trademarks to establish a distinctive identity and stand out in a crowded market; 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 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 celebrated film could not be devoid of protection. Some movies transcend the realm of conventional terms, 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 filmmakers. Furthermore, the court barred the defendants from utilising any photographs or clippings from the film and selling products using the name SHOLAY or including any images from the film.

Patents

A patent is a right awarded to an individual in relation to an invention that prevents others from utilising their idea without their permission. After the work is patented, the inventor has 20 years to sell, use, distribute, make, import, or export it. In the entertainment industry, patents are typically utilised 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 engage the audience creatively. 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

Design registration protects the shape, pattern, arrangement, ornamentation, or composition of particular lines or colours applied to the objects. The Design Act of 2002 protects any sort of design, including computer simulations, sketches, 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 to commercialise, improve, or enhance their aesthetic value. The Design Act governs everything.

Celebrity Rights in India

A celebrity is a well-known individual. Today’s society defines a celebrity as an 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 first to 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 inherent rights. It refers to rights that include 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, which used the brand ‘Tanishq’ for Jewellery. Mr Amitabh Bachchan and Mrs Jaya Bachchan endorsed this brand. They had agreed, and as per the terms, all Intellectual Property Rights created in the process of providing 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 identity vests with the person. 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. However, 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 recognised, 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. Accordingly, Defendant was barred from infringing on 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 regarding 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. India has no exclusive right to allow public performances and broadcast them.

There is only provision for secondary rights to prevent public performance, broadcasting, or recording without the authorisation 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 fundamental to protecting celebrity rights. This rising problem can only be addressed through litigation. For example, massive damages and multi-million-dollar settlements may end infringement or violation by individuals who have previously failed to respect the privacy of celebrities and employers.

Whereas the judiciary has repeatedly recognised the existence of various aspects of celebrity rights, it is the legislature’s responsibility to statutorily identify commercial aspects of celebrity rights to fill legal gaps and keep up with the rapid commercialisation of celebrity status.

Conclusion

By analysing 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 to 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 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.