ALG India Law Offices LLP
What's New
Article: Does Any Copyright Vest With The Director of a Film?
Author: Janaki Arun
Introduction:
Alfred Hitchcock once said that in feature films, the director is god. Proponents of the Auteur theory also believe that the director is the author and creative force behind a movie, and would therefore be the original copyright holder. However, the law as it stands does not vest any rights in a film in its director.
In a recent case before a single judge bench of the Bombay High Court [G.S. Patel, J.], viz. Kabir Chowdhry v. Sapna Bhavnani & Ors. [Interim Application (L) No. 5420 of 2020 in Commercial IP Suit (L) No. 5415 of 2020, February 10-11, 2021], the question of a director’s rights to intellectual property in a film was raised yet again.
Who owns copyright in a film?
From a reading of Section 17(b) of the Copyright Act, 1957, specifically – “…in the case of a…cinematograph film made, for valuable consideration at the instance of any person, such person shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein”, it is evident that the producer is the first owner of copyright in a film, and not the underlying author, viz., the script writer, lyricist, etc. While the law seems amply clear, issues were raised in several cases as to why the director, being the de facto creative force behind a film, did not have any rights to the film.
In the case of Ramesh Sippy v. Shaan Ranjeet Uttamsingh & Ors. [2013 (55) PTC 95 (Bom)], a single judge bench of the Bombay High Court [S.J. Kathawalla, J.] held that “…the producer of a cinematograph film is the author of the cinematograph film and…is…the person who takes the initiative and responsibility for making the work…The author…will be the persons responsible for the arrangements, particularly in the financial sense…” [Emphasis supplied]
The Plaintiff, in this case, contended that he was the director of the film, Sholay and was involved very closely in finalizing the script, screenplay, cast, location, editing, etc., however, the Court noted that he was unable to furnish any evidence to show that he was financially involved in making the film, and was therefore, at no point of time, the author and/or owner of the film.
Does contribution to a film result in copyright?:
The Kabir Chowdhry case raised an interesting question as to whether contribution to a film by way of shooting, editing, etc. would result in bestowment of copyright. The interim application was filed seeking, inter alia, an order crediting Kabir Chowdhry as co-producer and joint owner of the copyright in a documentary film ‘Sindhustan’ that he made along with the Defendant.
The Court noted that the Plaintiff’s prayers were worded in the manner of a mandatory injunction and, as such, the threshold was even higher than in other claims for interim relief. The Court delved into the concept of owner and author of a copyright as envisaged under the Copyright Act, 1957 and observed that “An analysis of these statutory provisions suggests the following in the context of a cinematograph film:
- the author is the first owner of the copyright;
- the author means the producer (and no one else); and
- the producer is he or she who has taken the initiative and responsibility for making the work.” [Emphasis supplied]
The Court relying on the decision in the Ramesh Sippy case, considered the Plaintiff’s financial involvement in making the film, and whether it satisfied the test of ‘taking initiative’ and ‘responsibility’, and noted that while the Plaintiff’s contributions, viz. re-shooting, editing and providing creative inputs without recompense, was deserving of due credit, the legal test itself was not satisfied.
The Court, dismissed the interim application and observed that “…In a given situation, there may be a director who is also a producer in some capacity…There is the auteur’s vision of the work, but when this is matched with taking the initiative in conceptualising the work and bringing it into existence, and also accompanied by the risk-taking element of responsibility, then and only then does one become a co-producer entitled to protection under the Copyright Act…”.
Conclusion:
V.R. Krishna Iyer, J. had, in the case of Indian Performing Rights Society v Eastern India Motion Pictures [AIR 1977 SC 1443], beautifully penned that “…Cinema is more than long strips of celluloid, more than miracles in photography, more than song, dance and dialogue and, indeed, more than dramatic story…and marvelous acting. But it is that ensemble which is the finished product of orchestrated performance by each of the several participants…”. While the participants deserve due credit, nowhere does the statute and/or courts state that these participants are entitled to become co-producers, and subsequent copyright holders. Considering the sheer number of persons involved in making a film, this would result in utter chaos. The law, and subsequently, the test for ownership of copyright in film is therefore clear, viz., the producer is the first owner of copyright and the producer is only a person who takes initiative and responsibility, specifically financial, in making the film.
Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.
Copyright: ALG India Law Offices LLP