Symbiosis law school Hyderabad
The process of making a film is known as film-making. “It is a non-linear methodology that emanated from the practical experiences at its beginnings.” However, it is not as easy as it sounds. It involves many elements, and the process is quite complicated. It involves various stages, including “the initial story idea, screenwriting, casting, shooting, sound recording and pre-production, editing, and final screening.”
The fine art of photography and visual storytelling in either a film, a television show or a web series is known as Cinematography. The film selection to filtration encompasses each component, including camera motion, camera angles, framing, lighting, composition, lens varieties, colour, focus, exposure, etc. The inimitable combination of visual art, motion, and sound brings together the script’s words and the creator’s imagination.
Intellectual Property, on the other hand, is the resultant outcome of how the human intellect is applied and industrialized to craft a property. It refers to “creations of the human mind, such as inventions; literary and artistic works; designs and symbols, names and images used in commerce.”
Even though the intellectual property is intangible, it still possesses the same rights any tangible property would possess. These rights enable the owner to benefit commercially from his/her creation. Mere ideas cannot be considered intellectual property, and the owner of such an idea does not have any right and cannot claim any protection. Only when such an idea is expressed, be it either in the form of a product; a service; a business model; literary and artistic works, etc. can protection be granted. An expression is key to protection. There are various types of Intellectual Property, including Patents, Copyrights, Trademarks, Designs, Geographical Indications, Trade Secrets, etc. The main aim of intellectual property rights is to ensure that the intellectual Propertyproperty creator receives due recognition and material reward.
As every art form is unique and abstract in itself, similarly films also have various emotions attached to it and deliver an experience like no other. However, the process behind making one is quite complex involving various stakeholders. The Indian Entertainment Industry is deemed one of the world’s largest industries producing nearly 2,000 films per year in almost 20 different languages.
With the onset of technological advancement, the level of imagination, creation and working business models has compelled the entertainment industry to be dynamic and adapt to the newfound techniques to develop, produce, finance, distribute and market films.
Moreover, there exists a common belief that “the business of making films has become more important than the actual film itself. However, the coming together of notions of art, culture and enterprise is arguably common to cinematographic productions worldwide.” With the advent of time, the three’s margins have gradually blurred, to such a level that the standing of a filmmaker as an entrepreneur and a creator has strengthened.
Rapid globalization and growth in the digitization sector have placed intellectual property rights on a very high pedestal. Distributing, selling or marketing one’s artistic work entails less creativity and more objective consideration. These rights ensure protection against impersonators and provide due recognition and material reward to the creator by ensuring that there is no monopoly of intellect. These rights are laid down in the “International Declaration of Human Rights, which provides for the right to benefit from the protection of the moral and physical interests resulting from the right holder’s work; literal or artistic product.”
If IP infringements, predominantly copyright infringements, continue unabated, the industry might become a loss making one, leading to reduced revenue from genuine and authentic sales. For instance, multiple copies of a DVD are produced without the permission of the rightful owner. This, in turn, leads to non-payment to stakeholders who have invested time, money and creativity into the production of the service or product.
These rights play a very important role when it comes to securing funds for a film or a web series or a TV show. For instance, after the producer identifies a suitable director, a contract is signed between them. Under the ambit of such contracts come a wide range of issues and as per the jurisdiction, “the director can be identified as the joint owner of the film with corresponding rights; as an employee with a paid salary; or as both. Often, the directors receive royalties from film distribution and in certain situations may be in a position to decide on the final version of the film which is to be released in the theatres.”
Once the film is completed, producers enter into contracts with several distributors for the purpose of distribution and remuneration. The contract can either be entered into with “a company for releasing the film in either VCD or DVD formats in local theatres or license it to local TV stations and buyers at film festivals”. Such distribution deals generally contain certain clauses which ensure that the distributor has “legitimate rights to make any modifications to the film required for distribution.” filmmakers purchase “errors and omission (E&O) insurance” in order to prevent any legal complications which might arise due to the acquisition of such IP rights.
Almost every stage of film-making, i.e., from securing funds to scriptwriting to distribution deals, requires some protection, and therefore, it is of utmost importance to invest in Intellectual Property Rights.
Role of Copyright in Cinematographic Films
A Copyright is a form of protection awarded to “original literary, artistic and scientific works. For example, books, musicals, films, paintings, sculptures, electronic databases, etc. This right grants the author the “exclusive right to reproduce and distribute copies, prepare derivative works, as well as perform or display the work publicly.” The main object behind copyright protection is to prevent “unauthorized use of their original work.”
According to the Berne Convention, 1886, a Copyright is protected for a minimum of 50 years from the author’s death date. In the case of cinematographic works, the minimum term of protection is 50 years after the release of the film or in case of failure to release, and the protection is minimum 50 years from the creation of the work.
In India, Copyright protection is granted for years from the date of the author’s date.
Authors may include “principal director, the authors of the screenplay and dialogue, or the composer of any music specially created for the film.”
As the right of copyright protection is generated as soon as an original work capable of protection is created, one does not need to get the copyright registered, but if registered it would be beneficial in case of any dispute.
A filmmaker is a copyright user and a copyright owner, implying that one should understand the necessity for such protection and at the same time revere the rights of other creators. Copyright is the mainstay of the entertainment industry as it enables creators to showcase, materialize and monetize their talent and creations. A small detail that has to be kept in mind is that one might not be the owner of the copyright of a work that he/she was hired to create in the first place.
When it comes to cinematographic films, many complicated and technical elements are involved, and protection of such elements is of utmost necessity, specifically in today’s world where piracy is such a big concern.
A Filmmaker can use this IP right in numerous fashions ranging from securing funds to copyrighting the script, the dialogues, the characters, the stage direction, the screenplay, the design of the set, and soundtrack the final product, i.e., the film and broadcasting.
These rights can be licensed, transferred, and documented to enable the creator to materialize pioneering ideas into a commercially viable concept.
During the film, producers negotiate several agreements that delineate exactly how this IP right, resulting from various creative minds, will be utilized and remunerated. Such agreements are known as “chain of title documentation”.
For instance, a cinematographic film is to be remade in a different language, the person making the remake has to have the permission of the original creator. They are implying that the original creator can grant the right to reproduce the original work for a predetermined or agreed-upon fee.
Copyright protection operates in all mediums, implying that one cannot reproduce a copyrighted work without prior permission in any medium including, “publishing photographs on the internet, making a sound recording of a book, a painting of a photograph, etc.”
Section 14(d) of the Copyright Act, 1957 talks explicitly about copyright in cinematographic films and exclusive rights awarded to the author of such a film in which the copyright exists.
- “To make a copy of the film, including a photograph of any image forming part thereof.
- To sell or give on hire, or offer for sale or hire, any film copy regardless of whether such copy has been sold or given on hire on earlier occasions.
- To communicate the film to the public. This section does not refer to sound recordings which form a part of the film. The sound recordings embedded in the film have separate copyright which is not affected by the copyright of the film as a whole.”
Such protection is awarded to the cinematographic film (including the film’s soundtrack) alone and not the artist or the performer. Nonetheless, the Copyright (Amendment) Act, 1994 has afforded certain special rights to performers called “Performer’s Rights” mentioned under Section 38 of the Copyright Act, 1957.
Music, lyrics and background score are an integral part of a film, especially when it comes to Bollywood films. Previously, it was an acceptable practise wherein the filmmaker would copyright under their production banner, musicians and lyricists’ creations by paying a fee. However, since the judgement of Javed Akhtar v. Producer’s Guild “lyricists and musicians can claim copyrights for their creations and continue to receive royalties, instead of handing over the copyrights to the film producer over and above the one-time payment received.”
Copyright and Related Rights go hand in hand can be used in favour of the creator. For instance, “the creator can sell the copyright but still retain the moral rights; the creator can license the copyright for use by others but retain the ownership.”
“Filmmakers are obligated to pay dues for using songs by other lyricists or musicians in their film. In case of a “remixed song” or a “movie remake”, both the music composer and filmmaker respectively, have to pay dues to the original creator, failing to which they can be sued for copyright infringement.”
“In October 2019, music composer, Dr Zeus accused the makers of the Bollywood film Bala of copyright infringement. The British artiste claimed that his hit number Do not Be Shy was recreated in the film without his permission, further accusing the makers of Bala of plagiarising his work. The makers of Bala later released an official statement claiming that they had completed the due process of acquiring the copyrights from ‘Karman Entertainment’; the company that owns the worldwide rights to the song in question. The film production company, ‘Maddock Films’, further claimed that Karman Entertainment gave them an official license to recreate the song. This made it possible for the filmmakers to include the song in their movie without paying any additional fees. However, the Bala filmmakers could have been sued for copyright infringement had the filmmakers not sought the copyrights to recreate or even use the musical notes/tunes in their film.”
Role of Trademark in Cinematographic Films
A trademark is a “word, a name, a logo, a symbol, a device, or any combination thereof, that can be used as a method of identification for goods or services.” A trademark needs to be distinctive and not deceptive. The mark used in case of services is called “service mark”.
A “trade name” is a name that distinguishes one business concern from another.
It helps potential and prospective customers weigh the reputation of the manufacturer or seller of the goods or service provider and facilitates in distinguishing the product or service from those of the competitors.
Registration of a trademark is not a compulsion, but it is better to get it registered by filing multiple trademarks as this will ensure protection under various classes, thus avoiding duplication.
A registered trademark needs to be renewed every 10 years to avail the protections and benefits associated with it.
Trademarks are generally used to build a brand image. In the entertainment industry, trademarks are applicable to various things, including the name of a film, the name of a studio or a production company, etc. By registering these film components as trademarks, costs involved in the production, and promotion can be financed.
A filmmaker has the right to register the name/title of the film before even beginning the shooting of the film, to prevent others from using the same title/name. For example, there was a dispute between Director-Producer Karan Johar and Director-Producer-Script writer Madhur Bhandarkar wherein, and the latter had accused the former of infringing his right and using the title “Bollywood Wives” in the Netflix show “The Fabulous Lives of Bollywood Wives” stating that the former had “blatantly tweaked and misused the title of his project Bollywood Wives.”
As soon as an expression is finalized in terms of tangible means, others are prohibited from duplicating that trademark without the rightful owner’s permission.
The world-famous Leo the Lion, official mascot of the Hollywood studio Metro-Goldwyn-Mayer (MGM) is a famous example of trademark registration in the film industry. The soundbite (The Roar) that appears at the beginning of an MGM Studios film is also a registered mark. This is known as “trade dress, the final element of trademark protection, which means that the trademark has gained such a significant industry reputation that consumers now know from the sound itself that it refers to MGM.”
Role of Patent in Cinematographic Films
“A Patent is an exclusive right granted by law to an inventor or assignee to prevent others from commercially benefiting from his/her patented invention without permission, for a limited period of time in exchange for detailed public disclosure of the patented invention. The time duration of a patent is 20 years. There are three types of patents: utility, design, and plant. The kinds that are most useful for filmmakers to know about are utility and design. Generally, the difference is that a utility patent protects the way an invention is used and works while a design patent protects the way an invention looks.”
The invention which aims to seek patent protection needs to be novel, non-obvious and useful, which means that it should be new, not an apparent creation for a person skilled in that field and should be used to the industry.
Various hardware equipment including cameras, tripods, lighting and sound systems, etc. are used in making a film. While using such products, daily it is likely that one will find an individual dash which has scope for improvement. Suggested improvements add to the quality, efficiency and functionality of the product, thus making it better.
A filmmaker can use patent protection in order to enhance film-making techniques and encourage innovation in the industry. For instance, if a new device or product is created to create sets, keeping in mind that such invention was not an obvious one for a person working in that field and the invention is useful for the industry by making the process of film-making easier, efficient and innovative. Then such an invention can be patented under the Patent Act, 1970.
Software tools such as CGI, 3D, animation, green screen, graphics, etc. are also used in film-making and fact, are an integral part of contemporary films.
Such software innovations can also be patented when combined with a device which performs the function of the code written in the software.
Over the years with technological advancement and a greater understanding of various technical aspects, innovations have paved the way for modern cinema. For instance, the camera, a device used for capturing images, has developed in innumerable ways over the years, making the process much easier and more comfortable than earlier times.
Role of Designs in Cinematographic Films
“A design covers the look of a product. They can protect a whole product, part of a product or how a product is decorated.” For example, the Disney logo is a registered design, so it can only appear on products where Disney has given its permission.
Designs play a crucial role when it comes to films as costumes enhance the look of the performer. Customarily costumes are designed keeping in mind the character, the storyline, the backdrop, the time period in which the story is set, etc.
Here the costume designer is hired to design costumes which fit the storyline of the film precisely. Hence, the possibility that the designs created are unique and exclusive is high and in case if the design so crafted is one of a kind, it can be protected under the Copyright Act, 1957 and Designs Act, 2000.
Role of Integrated Circuit in Cinematographic Films
“A product, in its final form or intermediate form, in which the elements, or at least one of which is an active element, and whereby the interconnections are integrally formed in and/or on a piece of material, which is intended to perform an electronic function.”
The integrated circuit protection can also be applied to film-making since much technical equipment including lights, sound recorders, cameras, screens, etc. is used while making a film.
Conclusion and Suggestions
Technically speaking, Intellectual Property is one of the most underrated yet a precious asset that a filmmaker can use to favour his film. A majority of the film elements make a deal with copyrights and related rights, thus making it an invaluable piece of property, which leads to growth and development of the industry as a whole. Although the risk of infringement can never be eliminated, by adopting specific measures and filing for these rights registration, one can ensure legal enforcement and claim unliquidated damages.
Moreover, investment in Intellectual Property Right leads to innovations and human advancement and economic development.
The industry can take a certain measure as a whole to mitigate the risks involved and enhance efficiency.
- Regular trademark audits to identify the marks which are currently in use and the unregistered ones.
- Conducting IP awareness workshops.
- Including an indemnity clause, in case of third-party agreements.
- Issuing social media policy summarizing the use of logos and copyrights.
- Creating an “Instant Response Channel” in order to deal with IP infringement.