The Copyright Battle in Indian Cinema: Who Owns What?

The creation of a film is a collaborative effort involving screenwriters, composers, directors and many other contributors. Under the Copyright Act 1957 (“the Act”), the producer is recognized as the sole author and owner of the film, whereas films and sound recordings are categorized as derivative works.

The Bombay High Court in Salim Khan v. Sumeet Prakash Mehra was faced with the question whether the scriptwriters of the classic movie Zanjeer, the duo of Salim-Javed, could restrain the producers of the film from releasing a remake of that film. The Bombay High Court ruled in favour of the producer. Relying on the landmark Indian Performing Rights Society Ltd. v. Eastern India Motion Pictures (IPRS) case, the Court held that once a literary and/ or musical work is incorporated in a film, the producer of the film becomes the first owner of copyright in such literary and/ or musical work, unless there is a contract to the contrary between the authors of such work and the producer of such film.

However, the Delhi High Court in RDB & Co. (HUF) v. HarperCollins Publishers, decided the issue in favour of the scriptwriter. In this case, Satyajit Ray was commissioned by RD Bansal (RDB) to write the screenplay of, and to direct, the film Nayak. The screenplay was later adapted into a novel and published by HarperCollins against whom RDB sought an injunction. The argument of RDB - that it owned the copyright of the film and thus its underlying works viz. the script and screenplay - was turned down by the High Court.

The Delhi High Court relied on Section 13 (4) of the Act to hold that the copyright held in a film will not affect the separate copyright in any underlying work(s). The copyright of the author subsisted in the screenplay. The author of the work, Satyajit Ray, was the first owner of the copyright by virtue of reading together Sections 17 and 2(d)(i) of the Act and Ray had the right to adapt or abridge the script.

A similar question with regard to the right of the script writer was decided by the Madras High Court in the Thiagarajan Kumararaja v. Capital Film Works (India) Pvt. Ltd, where the right of the producer to remake and also dub a film for re-release in other languages was contested by the screenwriter. The screenwriter alleged that he had not assigned the rights in the script to the producer and the producer, therefore, had no right to remake or dub the film without his consent. The Madras High Court held that the right to communicate a film to the public, which rests with the producer, does not include the right to remake the film entirely without the author’s consent, as this would entail making changes to the underlying script. However, it added that the sound recording is under the exclusive copyright of the producer, and thus dubbing, which entails replacing the sound recording with a different language, can pass muster.

Recently, the Delhi High Court in Saregama India Ltd. v. VELS Film International Ltd., dealt with the issue of whether the copyright in a song from the film ‘Moodu Pani’, vests with the composer of the song or with the producer of the film. The song was used in an upcoming movie, “Agathiyaa." Saregama claimed the right in the song on the basis of an assignment from the producer of the film in question, Moodu Paani, whereas Mr, Illayaraja claimed his right in the said song, being its music composer. The production house of the upcoming movie Agathiyaa, claimed its right on the basis of a licensee agreement with Mr. Illayaraja.

The producers of the upcoming film, also relied on RDB (supra) to argue that the producer of the old film could not have possibly claimed a right in the song in the light of Section 13(4) of the Copyright Act, which states that the copyright in a film shall not affect the separate copyright of any constituent work used in the film.

The Delhi High Court held that prima facie copyright in the song vests with the producer of the film and it includes the musical work and the literary work, i.e., the lyrics, and the sound recording. The music composer has no copyright over the literary work, i.e., the lyrics or the sound recording. Thus, having no rights over the lyrics of the song, the music composer could not have assigned rights of the song to a third party. 

The Delhi High Court in Sholay Media and Entertainment Pvt. Ltd. v Parag Sanghavi and Ors. dealt with the issue of infringement of copyright by the defendants who tried to remake the iconic movie “Sholay."

The Delhi High Court noted that iconic lines such as "Jo dargaya, samjho mar gaya," "Ai Chammia," and "Kitne Aadmi the," among others, have become timeless and continue to resonate with audiences. The central characters—Gabbar Singh, Jai, Veeru, Basanti, Radha, and Thakur—are integral to the plot and meet both the “Especially Distinctive Test” and the “Story Being Told Test,” making them eligible to copyright protection.

It was further held that various elements from Sholay, including its music, lyrics, background score and dialogues, are protected under the Copyright Act and that the producer of the original Sholay holds the exclusive rights to exploit or authorize the exploitation of these elements. The underlying literary works, such as the lyrics incorporated into the sound recordings, are also protected. Similarly, artistic works like featured sets and costumes and dramatic works, like  dialogues of the film, are protected under Section 14(a) of the Act.

The Copyright Act defines a “performance” as any live visual or acoustic presentation by one or more performers [Sec. 2 (q), Copyright Act]. A “performer” includes actors, singers, musicians, dancers, among other artists engaged in a performance. [Sec. 2 (qq), Copyright Act]

It is noteworthy that the work of an actor in a film does not constitute a separate copyright in the same way a screenplay or music does. In Fortune Films v. Dev Anand, the Bombay High Court clarified that, “the film in its entirety viz., the mixture or blend in its totality is protected... The protection, however, is not available to certain components and elements of this mixture viz., the actor's performance but may be available to the story, screenplay, scenario, or the music, in case these satisfy the requirements of the Act.”

While the performance of an actor with respect to a film is not copyrightable, the interests of famous personalities like actors and singers may be protectable under the Act, as also under relevant trademark laws. For instance, Section 38B of the Act provides “moral rights” to performers, such as the right to be given credit for their performance; the right to restrain against distortion, mutilation or damage to their performance and against the unauthorized use of their personality which includes their name, image, voice, and other distinctive attributes.

The issue of copyright in movies is multifaceted, involving various stakeholders like screenwriters, composers, producers, and actors. While the producer is recognized as the owner of the cinematograph film, the ownership of underlying works like scripts, music and performances can vary depending on contractual agreement and statutory provisions.

About the authors: Aditya Ganju is a Partner, Shambhavi Mishra is an Associate and Mihir Saksena is a Legal Trainee at AG Chambers.

Disclaimer: The opinions expressed in this article are those of the author(s). The opinions presented do not necessarily reflect the views of Bar & Bench.

If you would like your Deals, Columns, Press Releases to be published on Bar & Bench, please fill in the form available here.