Media, Entertainment and Intellectual Property Rights: A Contemporary Legal Analysis with Indian Perspective

Introduction

Media and entertainment (M&E) business nowadays is not only being driven by creativity but by intangible assets, namely, ideas, expressions, brands and personalities, which would also be subject to Intellectual Property Rights (IPR). Based on a Bollywood movie script and soundtrack, OTT web series, reality shows, video games and content of influencers, each frame and each byte can be a subject-matter that is afforded protection under the IP law. With the changing technology and films flowing across borders with ease, copyright, trademarks, moral rights, personality rights and digital piracy issues are not only increasingly common, but also more complicated.

The creative industries are the soul of the legal world through copyright. However, in India the bargaining between creators, producers, platforms and audiences is renegotiated on a regular basis. Judicial protection of rights-holders and authors is based on the classical maxim ubi jus, ibi remedium (where there is a right, there is a remedy), and salus populi suprema lex (the welfare of the people is the supreme law) is used as a justification to exceptions of fair dealing, news reporting, parody and educational use. The trick is to make sure that the law does not safeguard economic interests and moral rights, without stifling innovation, freedom of expression or access to culture.

This blog analyses the complex interaction between media-entertainment and IPR with a specific reference to India, which will be supplemented with a comparative analysis of jurisdictions, such as the United States and the European Union. It relies upon statutes and precedent case law and the current practices in the industry to provide a comprehensive, Cambridge-style legal analysis.

Copyright: The Entertainment Industry Engine

The copyright law is the leading law that regulates the works in the media and entertainment industry in India through the Copyright Act, 1957, as amended in 2012. Section 13 acknowledges the protection on literary, dramatic, musical, artistic works, cinematograph film and sound recording. A film hence comes to be a bundle of rights, script, dialogues, background score, choreography, poster, logo, and even promotion.

The 2012 amendment was a major boost to the authors and music composers. Section 18 and 19 have been amended to guarantee that authors of literary and musical work used in cinematograph films have a right to royalties especially in online exploitation. This was in reaction to industry custom of having the lyricists and composer receive a single payment fee and did not share future revenue generation.

Indian Performing Right Society Ltd. v. Eastern Indian Motion Pictures Association (1977) has discussed the issue of producers of cinematograph films to gain some rights apart of the authorship of underlying works. The post-2012 regime tries to strike a new balance in this relationship, so that creators can have a just portion of the commercial success their work is having, particularly in a streaming-based age of worldwide distribution.

The principle qui facit per alium facit per se (he who does through another, does himself) has been evidenced in how production houses and OTT platforms are obtaining very large-scale contracts with writers, cinematographers and composers. Nevertheless, non-waivable rights to royalty and moral to the right against attribution and integrity of the work over the work of the author must now be read to apply to such contracts.

Transformative Uses and Fair Dealing

In contrast to the more general doctrine of fair use in the United States, Indian law in Section 52 takes a more limited approach of fair dealing, enumerating such purposes as private use, criticism, review and reporting of current events. However, Indian courts have demonstrated a practical sense of reality of the media. An example given would be a small piece of song or film clip used in news coverage or in a review, as a memo or a parody program, may fall under fair dealing, as long as it does not replace the original work, and does not result in undue commercial damage.

Conversely, the US courts in such cases as Campbell v. Acuff-Rose Music, Inc. have realised that there is vast scope of parody and transformative use which grants freedom to media creators to a great degree. European Union law permits certain exemptions, such as under the InfoSoc Directive, quotation, criticism, review and caricature, although it is up to individual member states to implement. There is a slow transition towards a more balanced, user-friendly reading in India, but the text of the statute is still quite narrow.

Trademarks, Branding and Character Merchandising

The Trade Marks Act, 1999 is very important in media and entertainment in that it secures film titles, channel names, production house logos, character names as well as slogans. Trademarks in such an era where such a franchise as is the case with Baahubali or KGF spans across the screen into merchandise, games, and theme parks to name a few, save brand identity and avoid confusion with the consumer.

The Indian courts have accepted the fact that the title of the files, particularly of popular films or series, may develop uniqueness and be registered as trademarks. The infringement and passing off may be caused by misuse of deceptively similar marks, and the maxim nemo debet locupletari ex aliena jactura (no one should be enriched by the loss of another) can be used.

Another merchandising is character merchandising, which is expanding. Fictional characters like the comic heroes or animated figures or even the OTT personas are useful brand assets. Although there are no particular laws on character rights in India, protection is obtained by a mixture of copyright, trademark and passing off rules. However, the United States has a more advanced copyright and trade-dress jurisprudence on character copyright and trade dress, safeguarding not only names but even the visual look and persona of the characters.

Personality Rights, Celebrity Image and Social Media

Personality rights (also known as publicity rights) are essential in the era of influencers and promotions based on celebrities. They include rights to regulate the commercial use of the name, image or voice or likeness or any indicia of identity of an individual. There is no specific personality rights statute in Indian law, although the protection has been derived by courts out of Article 21 of the Constitution (right to privacy and dignity), as well as by torts and delicts like passing off and misappropriation.

In D.M. Entertainment Pvt. Ltd. v. Baby Gift House (2004) which was a case involving the singer, Daler Mehndi, the Delhi High Court acknowledged the infringement of the personality rights and passing off insofar as the unauthorised use of the persona of a celebrity in the form of dolls was concerned. In a more recent case, Indian courts have granted commercial protection to the commercial identity of actors and sports stars against unauthorised advertisements, deepfakes and look-alike endorsements.

The United States grants publicity rights internationally by enacting state laws and Haelan Laboratories v. is among such cases. Topps Chewing Gum (1953) insisting on the fact that the image of a celebrity has the separate commercial value. European Union finds a balance between the rights of publicity and data protection and freedom of expression, especially in the GDPR and the case law of European Court of Human Rights. India is gradually following a similar trend particularly with the increasing fear of AI-created deepfakes and virtual influencers.

The volenti non fit injuria (the injury to a willing person) is also important when celebrities willingly give a glimpse into their life on social media and cooperate with brands. Nevertheless, the agreement to permit a single use cannot be expanded to allow unauthorised and unrelated commercial exploitation. It is therefore essential that the endorsement and licensing agreements are well written.

Ott Platforms and Technological Protection, Digital Piracy

Digitalisation has changed the consumption of content but also increased the threat of online piracy. Cinema cam-recording, illegal streaming, Telegram channels and torrents cause significant economic damage to producers and distributors. The rule maxims nullus commodum capere potest de injuria sui propria (no-one is to be beneficiary of his own mischief) is the essential part of anti-piracy enforcement.

Indian courts have gone more towards dynamic injunctions and John Doe orders (Ashok Kumar orders) to injunction rogue websites even prior to the release of a film. To take an example, courts have granted the right-holders in a series of suits involving big budget films to send a notification to the internet service providers and instruct them to block access to URLs that are hosting copyrighted content illegally.

Digital Millennium Digital Millennium copyright act (DMCA) and anti-circumvention in the United States In comparison, the United States adopts the Digital Millennium copyright act (DMCA), along with its notice-and-takedown regime and anti-circumvention. The Copyright in the Digital Single Market Directive of the European Union drives the platforms to a higher degree of accountability in regard to user-posted content. Although no such overhaul of safe harbour exists in India at the time, the use of the Information Technology Act, 2000 and guidelines on intermediaries as a basis of intermediary cooperation in blocking infringement material is used in India.

OTT services like Netflix, Amazon Prime Video, Hotstar, Jicama and regional services now have key pillars on exclusive licensing and assignment deals, digital rights management (DRM) and detailed content acquisition deals to protect their IPR portfolios.

[Image Sources: Shutterstock]

Way Forward: Reform, Awareness and Ethical Practice

Even with a strong statutory framework, India continues to grapple with the issues of a low level of IPR awareness among small creators, regional artists as well as independent filmmakers. A significant number of these creators of content on YouTube, Instagram, and other sites do not know that music, clips and pictures have a licensing aspect and, therefore, end up violating it by default. Meanwhile, takedown mechanisms are abused by some right-holders to censor criticism or parody, which is a problem under Article 19(1) (a) (freedom of speech and expression).

Emergent issues in media-entertainment law in India will be determined by issues in future like:

• Artificial intelligence and the rights to works that were developed with a small amount of human effort.

• Virtual celebrities and deepfakes, which challenge the conventional ideas of the rights to personality and privacy.

• The interactive narrative and experiences of the metaverse, with no clear demarcation between the film, gaming or live performance.

To negotiate these complexities, courts and legislators will require using age-old maxims, such as aequitas sequitur legem (equity follows the law), and boni mores (good morales) and revise laws according to the reality of technology. An interdependent relationship between industry practice, self-regulation and statutory law is impossible.

Conclusion

Media-entertainment and intellectual property rights are not a niche issue any more: this is the axis around which the contemporary creative economy spins. Copyright, trademarks as well as personality rights are the legal infrastructure that allows films, music, OTT content, sports broadcasting, reality shows and influencer marketing to thrive in India.

Nevertheless, technology is moving fast and law cannot stand still. The courts have to remain purposive and progressive in their interpretation of IPR statutes to make sure that the creators get fair remuneration, investors have a certain predictability in protection and the audiences do have reasonable access to culture and information. The media-entertainment industry is, ultimately, doing well when the legal system is able to achieve a harmonisation between the animus creatrix the creative spirit, and the jus proprietatis the proprietary right. When India is able to reach this kind of balance, it will not simply be the world content-consumer but it will become a rule maker and right-conscious powerhouse within the global entertainment arena.

Author: Sweksha Kumari, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at  Khurana & Khurana, Advocates and IP Attorney.

References

      i.         The Copyright Act, 1957 (as amended in 2012).

     ii.         The Trade Marks Act, 1999.

   iii.         Indian Performing Right Society Ltd. v. Eastern Indian Motion Pictures Association, (1977) 2 SCC 820.

   iv.         D.M. Entertainment Pvt. Ltd. v. Baby Gift House & Ors, 2004 (28) PTC 123 (Del).

     v.         Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994).

   vi.         Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866 (2d Cir. 1953).

  vii.         WIPO, “Copyright in the Digital Environment” policy papers and guidelines.