Table of Contents
COPYRIGHT
A copyright is a kind of intellectual property right that gives an exclusive right to the owner of an intellectual property. When one’s mental faculties are used to create a product, such a product is called intellectual property. Copyright is a work of legal fiction that provides various rights to the creators of a work. Copyright could exist in books, poems, prose, films, computer programs, databases, songs, maps, advertisements, etc.
FILM
A film can be defined as an amalgamated product consisting of the professional expertise of various artists focused on bringing life to a work of fiction. The storyline and dialogue of a film, the actors that portray the characters, the kind of costumes and make-up used, the choice of a particular location, the music to hit the right feelings, etc., are of vital importance to ensure an amusing experience through the film
Protection of film titles under the Copyright Act, 1957
Number of contemporary films have shared titles with beloved classics. There have also been a handful of instances where the same actors have acted in two films having the same title. When two films share the same title and in certain cases, the same actor, the audience may draw comparisons between them even though the films have nothing else in common. A producer would naturally want to protect his film title to avoid a similar situation.
The question now is How, or there is any protection even provided under Indian law ?
Answer is – The fundamental works of a film are protected under The Copyright Act of 1957, we will access the protection given to film titles under the provisions of the Act.
Cinematograph films
Section 2(f) of the Copyright Act, 1957 defines a “Cinematograph film” as any visual recording work including an accompanying sound recording and shall be construed to include any such work like video films produced by analogous methods to cinematography. The definition of cinematograph film has undergone some amendments in order to bring more clarity to the definition. Before the 1994 Amendment to the Copyright Act of 1957, the provision simply said that cinematograph film includes the soundtrack and cinematograph meant any work that is produced via any process that is analogous to the process of producing a cinematograph film.
The legislative intent in making amendments to the definition was to emphasise the need for originality in a visual recording to become a cinematograph film in which copyright can subsist. Copyright cannot subsist in just any visual recording like in the case of CCTV footage, but there has to be some degree of originality in it for there to be any scope of copyright protection. Justice Krishna Iyer‘s footnote in Supreme Court‘s decision in the Indian Performing Right Society v Eastern India Motion Picture Association (1977) gives a beautiful explanation of Cinematograph Films:
“A cinematograph film is a felicitous blend, a beautiful totality… 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, exciting plot, gripping situations and marvellous acting. But it is that ensemble which is the finished product of orchestrated performance by each of the several participants, although the components may, sometimes, in themselves be elegant entities.”
Section 13 of the Act specifies which works are protected under the Indian Copyright Law, according to S. 13 (1) copyright subsists in original literary, dramatic, musical, and artistic works, cinematograph films, and sound recordings. Section 14 of the Act defines the term copyright, it states that copyright is the exclusive right to do or authorize someone to do any of the acts related to the aforementioned original works as specified therein.
Since most titles are common words or phrases used in everyday life and cannot be deemed an ‘original literary work’ per se, a straightforward reading of the Act suggests that a movie’s title would not be protected, because it would be difficult to determine whether a title was original.
The copyrightability of film titles was examined in detail by the Supreme Court in the judgment of Krishika Lulla and Ors. vs. Shyam Vithalrao Devkatta and Ors, the two-judge bench stated, “The mere use of common words, such as those used here, cannot qualify for being described as ‘literary’… The title in question cannot, therefore, be considered to be a ‘literary work’ and, hence, no copyright can be said to subsist in it, vide Section 13; nor can a criminal complaint for infringement be said to be tenable on such basis.” This landmark decision has been used as a reference in practically every claim for copyright infringement of a film title.
It should also be noted, under Section 44 of the Act, names or titles of works protected by copyright as well as other information pertaining to the authors, publishers and owners of copyright should be maintained in a register that is kept in the approved format and is referred to as a “Register of Copyrights”. One might assume that this would imply the title’s protection under the copyright act, but section 44 only addresses the registration of works protected by copyright; it makes no provision for the protection of the title itself.
This is because the title is not automatically protected simply because it is listed in the register of copyrights. And as decided in Sanjay Soya Private Limited Vs. Narayani Trading Company the registration of copyright itself is not mandatory.
Why have copyright
It is essential to understand the significance of holding a copyright. To understand better who can own it, it is essential to know why to own it. Holding copyright to a work vest the owner with various benefits to utilise and exploit the work to their advantage. Apart from the obvious advantage of protection, having a copyright gives the owner of the work the right to reproduce, perform, distribute, publicise as well as translate the work.
Simply speaking it gives a monopolistic right to the owner for their distinctive creation. Let’s take the example of the book “The Alchemist” by Paulo Coelho. It was first published in 1988 and written in Portuguese. The book became so widely famous that now it has been translated into more than 80 languages. There have also been theatrical adaptations and CD booklets of it. Moreover, a movie adaptation of the book is also being produced.
It is to be emphasised that none of these conversions could have happened without the consent of the author Paulo Cohelo because he holds copyright in his work. If a person were to copy the story in the book and distribute it as their own creation, then they could easily be sued for copyright infringement by the author.
Having a copyright also provides other moral rights such as paternity rights and integrity rights as discussed under Sections 57(1)(a) and 57(1)(b) of the Copyright Act, 1957. Thus, moral rights are mentioned under Section 57 of the Copyright Act, 1957 which was incorporated in accordance with Article 6bis of the Berne Convention, 1886. Moral rights encompass all the natural rights that a person has in their creation which reflect the personality of the creator.
Paternity right is the right of the author to have authorship or ownership of the work whereas integrity right is the right of the author to prevent any person from distorting, mutilating, modifying or changing the work in any manner.
The author can also claim damages in relation to such changes. This right essentially helps to preserve the integrity of the work. An author is entitled to moral rights as long as the copyright subsists which is generally for the lifetime of the author plus additional 60 years after the death of the author.
Registration of film titles with associations or GUILDS
As per the IMPPA report of 2021-2022, the Title Registration Committee of FMC has registered 16023 titles belonging to the members of IMPPA. However, as seen earlier, such registration may lack any legal impact. In the case of ‘Hari Puttar’, the court held that protection to titles registered to a particular association may only apply to its members and such registration won’t be binding to a third party since the agreement is only between the association and its members.
Numerous associations representing various stakeholders in a film are established in India. The non-exhaustive list of the same includes Film Makers Combine (FMC), The Indian Motion Picture Producers’ Association (IMPPA), Producers Guild of India (GUILD), Western India Film Producers’ Association (WIFPA), Indian Film and TV Producers Council (IFTPC) [previously known as the Association of Motion Pictures and TV Programme Producers (AMPTPP)], Cine & TV Artistes Association (CINTA), Film Federation of India (FFI) and Federation of Western India Cine Employees (FWICE).
The main aim of these organizations is to protect the interests of their stakeholders. In the Indian entertainment industry, it is customary to “register” film titles with such associations.