INTRODUCTION
Artists transform written, musical, and dramatic works into experiences that audiences can see, hear, and connect with. Whether the individual is an actor, vocalist, instrumentalist, dancer, lecturer, or traditional folk performer, their contribution goes far beyond simply presenting another person’s creation. Indian law acknowledges this contribution through the framework of performers’ rights. Sections 2(q) and 2(qq) of the Copyright Act, 1957, define a performance as a live visual or acoustic presentation and identify a performer as a person who publicly presents such an act. The definition is intentionally broad and covers numerous categories of artists, demonstrating the legislature’s effort to protect different forms of creative expression.
Performers’ rights operate independently from conventional copyright protection. Copyright primarily safeguards authors and creators of original literary, artistic, musical, and dramatic works. Performers’ rights, on the other hand, recognise the effort, skill, interpretation, and personal creativity that artists bring to a performance. In an era where technology enables instant recording, reproduction, editing, and online distribution, safeguarding performers from unauthorised exploitation has become increasingly important.
PERFORMER’S SPECIAL RIGHTS AND ECONOMIC RIGHTS
Section 38 of the Copyright Act[1] grants performers a special statutory right in relation to their performances. This protection exists separately from any copyright that may subsist in the underlying script, lyrics, music, choreography, or other creative work. Therefore, even where the performer is not the author of the original material, the law recognises the value of the performance itself as deserving protection.
The right remains enforceable for fifty years from the beginning of the calendar year following the year in which the performance occurred. During this period, unauthorised persons are prohibited from commercially exploiting the performance without the performer’s permission.
Section 38A confers exclusive economic rights upon performers. These rights include the power to make audio or visual recordings, issue copies to the public, sell or rent such recordings, and communicate or broadcast the performance to audiences. For instance, if a classical dancer records a stage recital with the intention of distributing it commercially, any unauthorised reproduction, circulation, or sale may amount to an infringement of the performer’s rights.
Section 38B[2] addresses performances incorporated into cinematograph films. Once a performer provides written consent for inclusion of the performance in a film, objections to its subsequent use by the producer are generally restricted. Nevertheless, the law preserves the performer’s entitlement to royalties and other benefits arising from commercial exploitation in accordance with statutory protections.
ACTS CONSTITUTING INFRINGEMENT
Performer’s rights may be violated through several forms of unauthorised conduct. One of the most common examples is the recording or reproduction of a performance without consent. Similarly, where a performance is used for purposes beyond the scope originally authorised by the performer, infringement may arise. Broadcasting, communicating, distributing, or commercially exploiting a performance without the necessary permission can also attract legal consequences.
At the same time, the law recognises certain exceptions. Uses connected with personal and private activities, education, research, criticism, review, or judicial proceedings may be permitted under the Copyright Act. The broader exceptions available under Section 52 may also apply where relevant. These limitations attempt to strike a fair balance between the legitimate interests of performers and the larger public interest.
MORAL RIGHTS OF PERFORMERS
The legal protection available to performers is not confined to financial benefits alone. Indian copyright law also recognises moral rights, which are designed to protect the personal and reputational interests of artists. Even where economic rights have been assigned or licensed, performers retain the right to be identified and acknowledged for their contribution.
A performer may also oppose distortions, modifications, mutilations, or alterations that adversely affect reputation or artistic standing. Such protections reflect the reality that a performance is often deeply connected to the performer’s identity and professional image.
The significance of moral rights has become even more pronounced in the digital environment. Modern editing software, artificial intelligence tools, and social media platforms make it easy to manipulate performances and circulate altered versions to large audiences. Without adequate safeguards, performers may suffer reputational damage for changes they neither approved nor participated in.
ANALYTICAL PERSPECTIVE
Although performers’ rights are recognised within the statutory framework, they continue to receive comparatively limited attention within legal scholarship and public discussion. Intellectual property debates frequently focus on copyright, trademarks, patents, and emerging issues involving artificial intelligence. Consequently, performers’ rights often remain overlooked despite their growing relevance.
A major reason for this neglect is the lack of awareness among performers themselves. Numerous artists, particularly those working outside mainstream entertainment industries, remain unfamiliar with the legal protections available to them. Folk performers, regional artists, and street entertainers are especially vulnerable because they often have limited access to legal guidance and professional assistance.
Another challenge lies in the relatively small volume of litigation concerning performers’ rights. Compared with constitutional disputes, criminal cases, or trademark conflicts, judicial decisions in this field remain limited. The absence of extensive case law has restricted academic engagement and slowed the development of a comprehensive jurisprudence.
There is also a broader societal dimension. Audiences readily celebrate performers for their talent, dedication, and artistic achievements, yet conversations about their legal and economic entitlements remain uncommon.
The rise of digital platforms has further intensified these concerns. Performances can be recorded, copied, edited, reposted, and monetised within minutes. Unauthorised circulation frequently occurs without the performer’s knowledge or consent. These realities demonstrate that performers face challenges extending beyond traditional copyright concerns and therefore require greater legal recognition and protection.[3]
CASE ANALYSIS-(FORTUNE FILMS INTERNATIONAL V DEV ANAND)
A significant milestone in the evolution of performers’ rights can be traced to Fortune Films International v Dev Anand.[4] The dispute arose from an agreement involving the celebrated actor Dev Anand in relation to the film “Darling Darling.” Differences later emerged concerning the exhibition and distribution of the film in specific territories.
The central issue before the court was whether an actor’s performance could be treated as an independent work deserving separate copyright protection. The court also considered whether an actor who had consented to the use of a performance and received consideration could continue exercising control over the film’s exploitation.
The Bombay High Court concluded that an actor’s performance did not constitute an independently copyrighted work under the legal framework existing at that time. The protection attached to the cinematograph film as a whole, and once consent had been granted, the actor could not restrain its distribution solely on the basis of the individual performance.
While the decision reflected the law as it then stood, it exposed the limited protection available to performers. Artists were viewed largely as contributors rather than independent rights holders. The case highlighted a significant legislative gap and underscored the need for stronger legal safeguards.
LEGISLATIVE RESPONSE AND SUBSEQUENT DEVELOPMENTS
The deficiencies revealed by decisions such as Fortune Films International v Dev Anand ultimately contributed to important reforms in Indian copyright law. Through later amendments, Sections 38, 38A, and 38B formally recognised performers as holders of distinct legal rights.[5]
Subsequent judicial developments strengthened this recognition. In Super Cassettes Industries Ltd. v Bathla Cassette Industries, the Delhi High Court emphasised that performers’ rights and copyright are separate legal interests.[6] The judgment reinforced the necessity of obtaining proper authorisation before reproducing or re-recording performances.
These developments indicate a gradual movement away from an entirely producer-centric approach toward a more balanced framework that recognises the interests of performers. Nevertheless, issues relating to awareness, enforcement, and accessibility continue to present significant challenges.
CONCLUSION
Consider the example of a talented dancer whose live performance is secretly recorded and uploaded online without permission. The recording gains popularity, is edited into multiple versions, and circulates across different digital platforms without attribution. Despite being the central figure in the performance, the dancer receives neither recognition nor financial benefit. Such situations have become increasingly common in the digital age and clearly illustrate the necessity of performers’ rights.
A performance represents far more than a moment of entertainment. It embodies years of training, discipline, creativity, and personal expression. Legal protection ensures that performers are not treated merely as instruments within the entertainment industry but are recognised as individuals possessing legitimate economic and moral interests.
Although considerable progress has been made through legislative reforms, performers’ rights still receive less attention than many other legal fields. Greater awareness among artists, stronger enforcement mechanisms, and more extensive judicial engagement are necessary for the continued development of this area of law. A legal system that values creativity must also value those who bring creative works to life. Protecting performers is therefore not only an intellectual property concern but also a recognition of artistic dignity, contribution, and cultural importance.
Author(s) Name: Anushka Das (Advocate Balasaheb Apte College of Law, Mumbai University)
References:
[1] Copyright Act 1957, s 38
[2] Ibid s 38B
[3] Shreyansh Gupta, ‘Performer’s rights under copyright law’ (iPleaders Blog, 23 April 2021) <https://blog.ipleaders.in/performers-rights-under-copyright-law/> accessed 10 June 2026
[4] Fortune Films International vs Dev Anand and Anr AIR 1979 BOM 17
[5] Copyright Act 1957, ss 38, 38A, and 38B
[6] Super Cassette Industries Limited vs Bathla Cassette Industries Pvt Ltd (2003) 27 PTC 280(DEL)