Copyright in Entertainment and Sports

by Poorvi Chothani, Esq. LawQuest

www.lawquestinternational.com

December 1, 2012

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Introduction
Laws pertaining to the entertainment and sports industry differ from other legal subjects, mainly due to the special economic considerations and business practices that influence their development. An important feature of entertainment and sports law is the drafting of diverse entertainment and sports contracts, which primarily deal with artistic/ players control, credit or billing, compensation of artists/ players and the protection and conveyance of intellectual property rights, such as copyrights, performer's rights, trademarks and right to publicity. Every man has a property in his own person. This nobody has a right to, but himself. John Lock. A personality right is a bourgeois or colloquial term used in reference to a "Right of Publicity. The right of publicity can be defined simply as the right of an individual to command and control the use of his or her name, image, likeness or other unequivocal aspects of his or her distinctiveness. It is generally acknowledged as a property right and not as a personal right.

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Introduction
Personality rights generally consist of two types of rights: the right to publicity, or to keep one's representation and likeness from being commercially exploited without permission or contractual compensation, which is similar to the use of a trademark; and the right to privacy, or the right to be left alone and not have one's charisma epitomized carte blanche. The right of publicity was coined from the right of privacy. It can exist in an individual or in any adumbration of an individual's personality like his name, personality trait, signature, voice, etc. An individual may attain the right of publicity by virtue of his association with an event, sport, movie, etc. However, no personality can be monopolized. The right of publicity vests in an individual and one alone is entitled to profit from it. This presentation will examine the right of publicity (or analogous right by a contradistinctive name) and the related copyright in the entertainment and sports sectors.

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Protection of Copyright
Copyright is an exclusive right that the owner of a work has with respect to his work. Copyright consists, not merely in the right to reproduction, but also in the right to work derived from the original works. In India, copyright in a film is recognized and protected under the Copyright Act, 1957 (the "Copyright Act"). The Copyright Act, inter alia, defines an author of a film, the different rights existing in the copyright of a film, the term of the copyright and mode of transfer of these rights.

It also lays down the provisions regarding infringement of copyright in a film.

The Copyright Act has been amended from time to time to make it more effective and to comply with international obligations.

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Works In Which Copyrights Subsist

The Copyright Act affords separate and exclusive copyright protection to original literary, dramatic, musical and artistic works, cinematograph films and sound recordings. In the film industry, copyright exists in the: Script, as a literary work; Lyrics of a song, as literary works; Music in the film (either in the song, or the background music), as musical works; Photographs or any posters made with respect to the film, as artistic works; A recording of the songs and dialogues in the film, as sound recordings; and; The entire film as a whole, as a cinematograph film. Therefore, besides copyright in the cinematographic film itself, separate copyrights also exists in any musical works and literary works in the film and sound recordings of the film. 1. 2. 3. 4. 5. 6.

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Author/Owner of the Film

The author and first owner of a film is its producer. The producer also needs the services of artists, performers, directors, lyricists, music composers, etc. during the course of production. Under the Act, there is a provision that if a work is made in the course of the author's employment under a contract of service or apprenticeship, the employer shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein. Furthermore, if a cinematograph film is 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. Therefore, it is essential that the producer enters into appropriate employment or service agreements with the artists and the rest of t

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Rights of the Author/Owner

The Copyright Act lays down the various rights given to each class of work. It provides the author/owner of the work, the exclusive right to do or authorize the doing of certain acts, such as reproduction, communication, publication, adaptation, and translation etc. of the work or any substantial part thereof. For example for cinematograph films, the owner of a cinematograph film is granted exclusive rights to: Make a copy of the film, including a photograph of any image forming part thereof; Sell or give on hire, or offer for sale or hire, any copy of the film; and Communicate the film to the public.

1. 2. 3.

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Transfer of Copyright
Transferring of copyright is a very crucial issue in the film industry as the process of transferring copyrights commences from the time of production of the film and continues until the time the film is communicated to the public through various mediums. Transfer of copyrights can take place either by way of an assignment or a license. Assignment implies the transfer of ownership. The copyright may be assigned either wholly or partially and either generally or subject to limitations. The assignment may also be for the whole term of the copyright or for only a part of the entire term. If the period of assignment is not specified, it will be deemed to be five years from the date of assignment.

The assignment of the copyright will be valid only if it is in writing and signed by the assignor or his duly authorized agent.
The assignment must identify the work, the specific rights assigned and the duration and territorial extent of assignment.

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Transfer of Copyright
In the case of a cinematographic film, the producer has the exclusive rights to assign his copyright in the film to a third person. Assignment may be by the first owner of the copyright in all existing work or the prospective owner of copyright in a future work to a third person. In case of assignment of copyright in any future work, the assignment will take effect only once the work comes into existence. The owner of the copyright in any existing work or the prospective owner of the copyright in any future work may grant any interest in the right by license, in writing and signed by him or by his duly authorized agent. But in the case of a license relating to copyright in any future work, the license shall take effect only when the work comes into existence. In the case of a cinematographic film, the producer has the exclusive right to license his copyright in the film to a third person. The conditions regarding period, rights and territory in an assignment are also applicable to a license.

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Related Issues
Whether censorship of films is required in this era of globalization? Whether the film producer has the right to assign the copyright in the sound recording to a music company? Whether future rights not included in an assignment agreement automatically vest in the assignee? Whether making a remix of a song amounts to a violation of the copyrights in the original song? Whether a person who wants to broadcast / web cast a sound recording needs to take a license from the IPRS and the PPL. Or any other ? Whether foreign investment is permitted in an individual film project and not in a film company per se? What constitutes a foreign film?

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Character Merchandising
Character merchandising is an area of law which is unexplored in India. It entails the exploitation of fictional characters or the recognition of celebrities by licensing famous fictional characters to others. The fictional characters are generally drawings in which copyright subsists, e.g., cartoon and celebrities are living beings who are otherwise very famous in any particular field, e.g.; film stars, sportsmen. Characters merchandised have over a period achieved an independent life and public recognition for itself independently of the original product or the field/ area in which it appears. The character has independently gained such a reputation as to be a commodity in its own right independently of the goods or services to which it is linked or the field/ area in which it formerly appears. For example: Superman. In India character merchandising jurisprudence is still in its budding stage.

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Article 12 in the Universal Declaration of Human Rights, 1948 (UDHR)

This Article states No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks.

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India
In India, as of date, neither has there been any judicial precedent recognizing or rejecting personality rights nor is there any legislation expressly granting such a right. As the Indian craze for cricket grows we are consumed by our obsession with cricket related celebrity status. This is in addition to our continued obsession with film personalities, growing stature of sports persons in tennis, shooting, badminton, and car racing to name a few. Businesses recognize this and are eager to have personalities endorse their products resulting in a huge business and enormous profits around image or personality rights. The Constitution of India under Article 21 recognizes Right to Privacy as a fundamental right against the state. A person whose privacy has been infringed by any private individual may seek a remedy in the form of civil wrongs through a tort action, which may be added with an action for breach of confidence, misappropriation, trespass, or defamation.

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Recycling Old Advertisements

Katrina Kaif, an extremely well known movie star in India has filed a suit against a personal hygiene products manufacturer (the Company) claiming a transgression of her publicity rights.

An individual can be assessed as to his or her celebrity status by virtue of the number of authority contracts and the repayment for such contracts.
At an early stage, an aspiring film actor is likely to take every opportunity that comes along and is not fastidious about what is put into the written contract if there is one. In addition, the burgeoning actor does everything possible to gain publicity. However, the tables turn once the individual, gains celebrity status. The celebrity is now eager to encash the monetary and non-monetary benefits that accrue from the newly gained public status. Therefore, an unauthorized use of the celebritys persona, mien, image or information is challenged as a violation of his or her publicity rights. The laws in India do not provide for this type of intellectual property and jurisprudence shows that the judges grapple with such claims and often turn to international cases to gain some guidance. Kaif, early in her career endorsed one of the Companys products for a relatively small amount.

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Recycling Old Advertisements

She recently endorsed another personal beauty product (similar to the product she endorsed for the Company earlier) ostensibly for a large amount. The Company reintroduced the antediluvian announcements on television to run parallel with the new advertisement broadcasts. Kaifs contract with the Company provided for remuneration for an initial period and a recurring annual reimbursement if the commercials were used for supplementary periods. Even this was an infinitesimal amount. Several years had lapsed between the initial affirmation contract and the recent broadcasts during which time Kaif had gone from being an unknown pretty face to an applauded movie star perceived across the globe. Kaif sought an order from the Bombay High Court against the Company detaining it from using the antecedent promotions. The court will have to eventually deliberate persona rights and/or publicity rights when dealing with the nuances of the case. However, this could take several years as the court system is heavily backlogged. In this case, the Bombay High Court did grant an order restraining the Company from using the old advertisement in question.

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Use of Media to Protect Personality Rights

In recent times, leading South Indian actor, Rajnikanth issued a legal notice just before the release of his latest film, "Baba", interdicting anyone from emulating his screen persona or using the character of "Baba" for exchange gain, including by way of advertisements, broadcasts, promulgations and replication by mimics on television. Published in a number of leading Tamil and English dailies the legal notice also enunciated that no attempt should be made to use Rajnikanths physiognomy or habiliment in the film, such as head-scarves, pendants, etc, for the purpose of endorsing products. Given Rajnikanths iconic cachet in South India, even his idiosyncrasies, mannerisms, dialogues, shenanigans and antics have been duplicated multitudinous times. By issuing a legal notice to prevent illegitimate duplication of his persona, is Rajnikanth in any way attempting to asseverate his "personality right" heretofore unheard of in Indian legal colloquialism. Are stars and celebrities in India finally waking up to the smell the coffee?

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Implied Endorsement
A well-known cricketer, Sourav Ganguly and ex-captain of the Indian team was troubled when he realized that Tata Tea Ltd., in which he was previously employed as a manager, was endorsing its one-kilogram tea packets by offering the consumers an opportunity to congratulate him for his achievement for a cricket series, through a post card inside each packet of tea. This wrongly implied that the cricketer had linked himself with the offer. Eventually the promotion was withdrawn.

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Improper Use of a Nationally Important Personality

In 2009, with the consent of Tushar Gandhi (Mahatma Gandhis great-grandson), Mont Blanc released luxury pens in India called Mahatma Gandhi Limited Edition 241 and Mahatma Gandhi Limited Edition 3000. The sale and marketing of these luxury pens was opposed because The Protection under the Emblems and Names (Prevention of improper use) Act 1950, states, only the government can permit names and images of nationally important personalities for any trade, business or professional purpose.

Consequently, to ensure respect for people with high standing, Mont Blanc was compelled to pull out its announcement and the pens in question from the market.

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Conclusion
The exorbitant endorsement deals received by film stars and cricketers connote that there is great commercial value attached to endorsement by such celebrities. If persons without acceptable compensation to the celebrity, appropriate such commercial value, should the celebrity have the right to sue for such embezzlement? Is it therefore propitious and legitimate to determinate a personality right in India? With jurisdictions such as the USA and the UK (and several others) providing clear identification of the personality rights of celebrities, maybe it is time for India to provide judicial and legislative recognizance to this modernistic classification of intellectual property. Importantly, Indian courts often refer to precedents from the UK and the USA when deciding on issues that are brought before them for the first time. Celebrities are increasingly asserting their rights in India as evidenced by the instances mentioned above have occurred in the recently passed years.

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Disclaimer
The contents of this publication are not a comprehensive consideration of the subjects discussed and are designed to provide preliminary, general information. Readers should not conclusively rely on the information as legal advice and should seek independent counsel before any action is taken with respect to these or other specific issues.

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