DIRECTOR'S CUT: A NEGLECTED COPYRIGHT
This guest post under the RFMLR Blog Series on Evolving Landscape of Intellectual Property Rights is authored by Ms. Gunjan Arora (Assistant Professor and Head, Centre for IPR, Institute of Law, Nirma University (ILNU), Ahmedabad) and Vedant Saxena (student at Rajiv Gandhi National University of Law, Punjab).
“The law of copyright rests on a very clear principle: that anyone who by his or her own skill and labour creates an original work of whatever character shall, for a limited period, enjoy an exclusive right to copy that work. No one else may, for a season, reap what the copyright owner has sown.”
- Lord Bingham of Cornhill in Designers Guild Ltd v Russell Williams (Textiles) Ltd 2001
The excerpt from the judgement quoted above delineates the very basis of copyright law- to give what is rightly due to a person who invests his own labour and efforts in creating an original work. Hence, the one who advances an original piece of work that has not been in existence previously, must be endowed with rights and interests as the author of the work. This is the Natural Law Rights theory that underlies the grant of copyrights. On similar lines, this article seeks to vouch for Authorship rights for the Director of a Film, who in most cases is merely granted benefits under the contract with the producer. There are no economic benefits per se, under the Copyright Law, that the Director is provided with in comparison to the proportion of his/her contribution to the making of the film.
The legal principles at present, however, seek to distinguish between the Owner and the Author of an original work and in most cases, these two are different entities who are recognised and endowed with all rights incidental to Copyrights. The Copyright Laws across different jurisdictions, including India, differentiate between an owner and an author of a copyright work. The latter shall be deemed to waive all economic rights under the law if he/she creates an original piece of work while being hired by a person who has commissioned the author to create the work in return for payment of consideration under a contract. This being the general principle is subject to a clause contrary to it under a contract. It is this distinction that is also brought in a filmmaking process, where technically it is considered that the Producer, being the investor in the film, hires all the other contributors, including the Director of the film. If we may refer the Indian provisions on Authorship and Ownership under Section 17 read with Section 14(v) of the Copyright Act, 1957, the position is even more intricate in the case of a Film Director, as under the Law, he is not considered as the Author in the first place. Hence, the problem with the law at present is that the Director seems to attain no place or status under the Copyright Law as far as the rights of an Author are concerned.
The debate pertaining to the distinction between Owner and Author becomes increasingly material in cases where it may be difficult to identify the distinguished contributions of the owner and the author for a specific work, as is in the case of cinematographic works, which by their very nature, are a collaborative phenomenon of all the various performing artists and authors involved. This collaborative synthesis may be instilled by striking the right balance and fairly negotiating the various rights and remuneration of all those involved in the film-making process.[i] The law recognises the Producer as the owner and author of the work, whereas the Director of the film may merely be assigned joint authorship under the terms of the contract at the discretion of the producer.
The present article hereby seeks to find answers to the questions on rights of the Director under the Copyright Law as his contributions are no less original and creative in so far as the film is concerned. Therefore, considering the very premise on which the Copyright Law in general is based, giving what is due to the Director of a film as an Author is the central argument of this piece.
2. FILM: AN OUTCOME OF THE DIRECTOR'S INTELLECTUAL LABOUR
A film is a collection of a variety of elements including production, screenplay, sound recordings and music, the performance of various artists and actors, and the art of direction. Proper documentation of the chain of titles, assignment and transfer of all rights involved determines the ownership rights of the producer of the film.[ii]
The process of filmmaking involves various different stages including the development of the idea and plot of the film, pre-production, production, post-production, and film distribution and promotion. The idea for the film may either come from the scriptwriter to the proposed director of the film or in some cases it may be the director himself who reaches out to a scriptwriter based on the plot of the film story that he has planned for. In the pre-production and production stage, the director starts looking for a promising financier who is willing to invest in the filmmaking process.
Filmmaking is an art that is mastered by a director who ideates, imagines, creates and brings to screen his thoughts and perceptions on a specific subject. As a filmmaker, there is a challenge to tell the story with one's own vision, using one's own creativity and intelligence. From choosing the angle of the camera to editing the screenplay, guiding the cast and crew for the film throughout the process, a filmmaker (Director) is the one who controls the creative aspects of a film.[iii] Hence, his role is indispensable. A film is rather a reflection of the thoughts of a director and mirrors his perception of the society.
An important theory underlying copyright is the Personhood Theory- a work created by the author is a reflection of his personality. Imbibing the underlying principles of the Personhood Theory to the Film making process helps us recognize the fact that a film is reflective of the director’s artistic vision, and therefore, just like in the case of any other artistic creation, the director should be granted the rights associated with authorship. The main argument of this theory is that as a director plays a decisive role in the making of a film, and therefore, the final product is the result of his skill and labour, he must be endowed with the benefits as an Author under the Copyright Law. Some of the very famous filmmakers, including the Late Yash Chopra, Subhash Ghai, Sanjay Bhansali, Aashutosh Gowarikar & Imtiaz Ali among others, are widely identified by the audience with the nature of the films they make and cinematography fineness that each of them exhibits. A grant of status of Authorship to the Director shall further strengthen his position as against the producer of the film and grant him/her more powers in so far as negotiating the terms and conditions pertaining to distribution and promotion of the film are concerned. This theory influenced many European states in giving due credit to the efforts of the director. In states such as the United Kingdom[iv] and France,[v] the director is now recognized as a joint-author and co-author of the film respectively, and therefore, he is entitled to the royalties accrued from the ownership rights.
3. ECONOMIC RECOGNITION
Having understood the contribution of a director to the process of filmmaking, moral and economic recognition, and attribution of credit is what becomes a legitimate expectation. As far as the Indian Film Industry is concerned, a term in a contractual agreement between the Producer and the Director gets to decide the remuneration which the director may get post the release of the film. This again, to a large extent, is dependent on the Box Office success ratio that the film manages to obtain. In so far as the legal provisions under the Copyright Law are concerned, for the purposes of a Cinematograph film, the producer is deemed as the author and owner of the work created for all intents and purposes. This in fact is ironic, as the term “work and originality” in copyright means and includes creations that come directly from the author, i.e., the one who creates the work. However, surprisingly, it is the producer, i.e., the financier for a cinematograph film who is considered the author and owner of the work. Further, it is the ‘work for hire’ principle that governs the legal relationship between a producer and the director of a film. Of course, this may not be a relevant discussion in cases where the director and the producer are the same person, but it becomes important when we talk of directors who are self-made and are new to the industry. According to Section 2(d)(v) of the Indian Copyright Act, 1957, the producer of a film is considered the author as well. This is on account of the Work Made For Hire ("WMFH") doctrine, according to which the essential crew members such as the directors, actors and set designers do not own any part of the final product. All ownership rights vest in the studio that hired them.[vi] Whenever there is a dispute regarding the rightful authorship of a film, the producers usually contend that the director is paid a handsome amount by virtue of the WMFH agreement. While this fact cannot be denied, however, it must be noted that the amount paid to the directors is negligible as compared to the profits enjoyed by the producers by way of distribution rights, selling of broadcasting rights and satellite rights, online releases, etc.
The 2010 Copyright Amendment Bill[vii] sought to bring into place the provision on Joint Authorship of films. However, the same was rejected on the presumption that this would undermine the role of the Producer and rather there may be situations where the Producer might himself become the Director instead of hiring one as this would lead to division of rights under authorship and ownership of copyrights. The refusal on these grounds doesn’t seem like a convincing argument as in recent times, there are varied actors and directors who assign the producer status to either themselves or someone from their family itself keeping in view the budgetary constraints. A positive move towards granting authorship rights to the Director may rather undermine the powers of the Producer, who until now enjoyed the perks of being in a position of employing his influence upon the other contributors, merely because the ownership rested in him. In Sartaj Singh Pannu v. Gurbani Media Pvt Ltd., while the Hon’ble Delhi High Court failed to provide relief to the director-petitioner on account of the lack of statutory support, it addressed the indispensable need for granting authorship to directors, considering the amount of creativity they invest in making the film.
4. CONCLUDING REMARKS
The intellectual creations of a director are not something that the law protects. In fact, this is an age-old practice since the Statute of Anne, which sought to give copyrights to the Publisher and Printer of a book- ideally the financier. Cinematography is an art that is learnt over the years by a director. The fact that there are Training Schools and Institutes across the world that impart learnings on cinematography proves that this is a skill that may be learned and expertise may be acquired over time.
The USA provides for copyright to choreography, which too is considered as a skill and art. Drawing an analogy here, we may say that the same principle must also govern the grant of copyrights to cinematography and hence, it is the director who must be considered as an Author and Owner of the work, or at least be granted Joint Authorship with the producer.
Endnotes: [i] Bertrand Moullier et. al., Rights, Camera, Action! Ip Rights and The Film Making Process (World Intellectual Property Organization 2008). [ii] Securing Rights - From Script to Screen, Wipo Magazine (2011), available at https://www.wipo.int/wipo_magazine/en/2011/04/article_0004.html. [iii] Linda Burstyn et al., Making Movies: A Guide for Young Filmmakers (The Film Foundation 2004). [iv] Copyright, Designs and Patent Act 1988, § 9(2)(ab)) (Eng.). [v] Law of March 11, on Literary and Artistic Property, Article 14 defines “Droits d’Auteur” in context of a film. [vi] The Indian Copyright Act, 1957, No. 14, Acts of Parliament, 1957 (India). [vii] Copyright Amendment Bill, 2010, available at- http://18.104.22.168/billstexts/rsbilltexts/asintroduced/copyright.pdf.