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COPYRIGHT IN MOVIES – An overview.

Introduction

Sometimes we come across a movie or a part of a movie that seems familiar to a book or some other movie. Movies originated from ideas of the human intellect which are executed and made into movies by the filmmakers. Filmmakers put many months or years into bringing an idea to life in form of movies and these creative works deserve to be protected. Copyright laws exist to protect these efforts by the filmmakers and other people involved in the process. Copyright provides a remedy if the work is stolen, copied or distributed without the prior permission of the original author or owner of the work. It is important to note that there is no copyright in the case of mere ideas but movies can be protected under the Copyright Act[1].

COPYRIGHT IN MOVIES

Copyright gives an exclusive right to the owner of the copyright to reproduce the work, make copies of it, issue copies of the work, perform in public and other related rights given in the law[2]The law incorporates cinematograph films as eligible for copyright protection[3] .

In the case of a film, the copyright gives the following rights to the author or the owner of the copyright –

  • make copies of the film including a photograph and store it in any medium.
  • sell or rent or communicate to the public in any form.

For a sound recording –

  • To make any other sound recording embodying it.
  • To sell or give on commercial rental or offer for sale.
  • To communicate it to the general public
WHO IS THE OWNER OF THE COPYRIGHTS IN THE CASE OF THE MOVIES?

A movie is made of many different elements which include music, lyrics, script, dialogues etc. Several people are involved in the making of one movie. Copyright for every element of the movie is owned by the producer[4]. Once a contract is entered between the first author and the producer to incorporate his work in the cinematographic movie, no objection can be raised against the producer with respect to the enjoyment of those rights[5] . The “producer, in relation to a cinematograph film or sound recording, means a person who takes the initiative and responsibility for making the work[6] .”

Judicial approach

  • G Anand vs M/S. Delux Films & Ors[7]

Supreme Court in this landmark case in the area of copyright law led the following points –

  • Only ideas, movie themes, movie plots or facts cannot be a part of the copyright
  • When the same idea is developed in two different situations there are going to be similarities, in this case, the courts shall determine the significance of similarities and how they are expressed. If the similarities are significant then it would lead to copyright infringement.
  • If the second work originated from the same idea and is presented in a completely different manner then no copyright violation arises.
  • The safest test to determine copyright violation is If in the eyes of the reader or viewer there is an “unmistakable impression” that the latter presentation is a copy of the previous one.
  • Even if the theme is the same but the presentation is completely different there is no violation.
  • Even if there are similarities, there are also dissimilarities which nullify the effect of similarities no violation arises.
  • Zee Telefilms Ltd. And Film vs Sundial Communications Pvt. Ltd[8] .

In this case, the Supreme Court said that to find out if two concepts are similar the foundation, substance and kernel are to be considered and it should be observed if the reproduction of the work can stand without it, if it cannot then irrespective of the dissimilarities it would be a substantial reproduction.

  • Shree Venkatesh films Pvt. Ltd vs vipuL amrutlal shah & Ors[9]

In this case, Calcutta high court gave broader meaning to the infringement in films. It mentioned that a carbon copy of a film is only one type of infringement. There can be a case a part of the film is stolen and exhibited.

  • It is observed that a cinematographic film is a collection Of various works like the story, screenplay, dialogue, soundtrack etc. Each of these works may have a valid copyright. The producer gets these rights by operation of law, by contract or by assignment, in this case, the producer becomes the first owner of the copyright. All these rights together are made into a cinematographic film, and a new right is vested in the maker/producer.
  • The individual owners of copyright in works cannot claim their individual copyright when the film is considered as a whole. However, if considered in parts and individual work is betrayed then the individual owner can benefit from his copyright.
  • However, each work is not capable of being protected under copyright. To claim the copyright there must be originality and an element of novelty meaning even though the producer has sourced different parts of the film from different sources, when these raw elements are converted there must be the use of his skill along with his intelligence to create the new material which in its displayed form is completely different from its raw elements.
  • The court also observed that when there is an “alleged similarity” in the films taken as “whole in the opinion of the said viewer” there is an infringement of the copyright.

WHAT COMPONENTS OF MOVIES ARE PROTECTED UNDER THE ACT?

  • Title of the movie

The title of the movie isn’t protected under Copyright laws however if it is infringed it can be protected under the passing off action or the titles can be trademarked and thus protected under Trademark laws.

Supreme Court stated that no copyright exists in the case of the title of the movie or any literary work for that matter as the title does not qualify as work It is difficult to protect the title of the film by an act of infringement of copyright due to the requirements of originality. However, if the title is well known the owner can get a remedy by filing a passing-off suit[10] .

  • Performer’s rights

“A performer includes an actor, singer, musician, dancer, acrobat, juggler, conjurer, snake charmer, a person delivering a lecture or any other person who makes a performance[11] .”Performer rights are recognised under the Copyright Act separately[12] . The act gives “exclusive rights” to the performer over his work to reproduce, sell or communicate his work[13] . However in the case of cinematographic films or movies the owner of the copyright is the producer of the film thus the artist only has rights over his performance in the movie and not over the whole movie.

  • Musical work and lyrics

The lyricists and the makers of the musical works are the authors of their work but once they approve their work to be used in a cinematographic film they lose their rights over their work. The film producer becomes the owner of the copyrights. The film producer has the right to use the musical work in the movie or to play the music in public. However, the composers retain the right to perform their work in public for Profit. In simple words the composers cannot stop or restrain the producer from using the music in the movie or from making copies of it and also on the other hand the producers cannot restrain the composers from performing their work in public for profit. The composers have the right to the music they produced whereas the copyrights of the recording of the music are with the producer.

  • Sound recording

Under the act, the terms sound recording and music recording as considered different terms. In the act, the recorded sound is protected under the Copyright act[14]. However, only those sound recordings protected can be reproduced, which are not in violation of the act, which are not just a mere copy or a part of previously recorded sound recordings.

Conclusion

The process of making a film is long, it takes years. A lot of elements are combined to make a film. All of these elements may or may not have separate copyright protections but once these elements are been created and converted into a film, the film gets new and blanket copyright over all these elements and the copyright lies with the producer. The producer can use these separate elements at his discretion.

Author(s) Name: Tashvita Yardi (Savitribai Phule Pune University)

References:

[1] R.G Anand vs M/S. Delux Films & Ors 1978,  AIR 1613, SCR (1) 218

[2] Copyright act, 1957, s 14

[3] Copyright act, 1957, s 13(1)(b)

[4]  Copyright Act, 1957, s 2(d)(v)

[5]  Copyright Act, 1957, s 38A(2)

[6]  Copyright Act, 1957, s 2 (uu)

[7] R.G Anand vs M/S. Delux Films & Ors (n 1)

[8] Zee Telefilms Ltd. And Film v Sundial Communications Pvt. Ltd. 2003, (5) BomCR 404

[9] Shree Venkatesh Films Pvt. Ltd vs Vipul Amrutlal Shah & ors 2009, CS No. 219/2009

[10]  Krishna Lulla & Ors vs Shyam Vithalrao Devkatta & Anr  (2005) Criminal Appeal No. 258/2013

[11] Copyright Act, 1957, s 2 (qq)

[12] Copyright Act, 1957, s (38)

[13] Copyright Act, 1957, s (39)

[14] Copyright act, 1957, s 14 (e)