THE IMPLICATIONS OF RDB & CO. V. HARPERCOLLINS INDIA JUDGEMENT AND THE POSSIBLE NEED TO REVISIT THE DEFINITION OF A ‘CINEMATOGRAPH FILM’

On the 23rd of May, Justice C. Hari Shankar of the Delhi High Court while dealing with the matter of RDB and Co. v. Harper Collins India Pvt. Ltd. regarding the ownership of copyrights to the screenplay of 1996 film ‘Nayak’ held that the first owner of the copyright would be Satyajit Ray and therefore, the copyright was vested in his son Sandip Ray and the SPSRA (Society of Preservation Satyajit Ray Archives). Read judgment here.

FACTS OF THE CASE

Filmmaker Satyajit Ray, was contracted by an independent contract (however, the contract did not amount to assignment) to write and direct the film ‘Nayak’ produced by R.D. Bansal. After completing the screenplay and directing the film, Satyajit Ray passed away in 1992. In 2018, Bhaskar Chattopadhyay novelized the screenplay, which was published by the defendant. The plaintiff RDB & Co., claimed to be the owner of the copyright in the screenplay and alleged that the publication of the novel infringed upon their copyright. The defendant disputed the plaintiff’s claim and argued that copyright vested in Satyajit Ray. The central issue being – whether the author or the producer owns the copyright in the screenplay.

The Hon’ble Judge ruled that Satyajit Ray, as the author, was the first owner of Nayak, rejecting the plaintiff’s claim of ownership owing to the fact that there isn’t any provision other than Section 17, which would confer copyright on any other person and the plaintiff failed under all 4 provisos of Section 17. Justice Shankar also ruled that the screenplay would classify as a ‘literary work’ and as per Section 13(4) the copyright in an underlying work cannot be affected by the separate copyright in the cinematograph film itself which vests in the plaintiff.

IMPLICATIONS

First and foremost, this judgement has clarified that producers can not automatically assert rights in underlying works (such as screenplays in this particular case) in the absence of a specific agreement of assignment. Sudarshan MJ has explained this in detail here.

Apart from this, there are two other concerning implications offered by this judgement which I intend to delve into in this article:

(i) Screenplays are to be considered to be ‘literary’ in nature and not ‘dramatic’. This is relevant because royalties work depending on the nature of work. While authors of literary or dramatic works included in a cinematograph film can not assign or waive the right to receive royalties to be shared on an equal basis with the assignee of copyrights (Section 18), there is no mention of authors of dramatic works included in cinematograph films.

(ii) Copyrights to screenplays are to be considered as separable from their films. 

Assuming that the author does not enter into a contract granting exclusive rights to a producer –  the author of the screenplay can give screenplay rights to more than one person at the same time or at different times as seen in the current case. 

THE BASICS OF FILMMAKING ― UNDERSTANDING SCREENPLAYS

To understand the topic better, it is essential to brush up our basics in filmmaking. Owing to my own background in the media industry as a Bachelor of Mass Media and my communications with film and media professionals over time and particularly in conversation with filmmaker Akshara Suresh, I have understood the current state of the industry for the production of films to be such that, usually, a set process is followed to create a film from a story. 

Ideally, as my background and interactions inform me, it starts with a story concept or a log line ranging from a small paragraph to a 5 page document that contains the ‘how’ and ‘why’ the writer wants to tell the particular story and doesn’t really delve into the narration of it. 

Logline example:

Slumdog Millionaire – A teenager from the slums of Mumbai excels on a TV game show and when interrogated under suspicion of cheating, revisits his past, consequently revealing how he had all the answers. For more such examples and a deeper understanding of loglines, one can read here.

This is then fleshed out into a 20-page document that deals more with the ‘what’ and eventually a detailed deconstructed research document which is commonly referred to as a ‘Bible’ in the film industry is prepared. The said Bible typically comprises of a cover page, an introduction to the story, a deep dive into the setting in which the story is based i.e. the place, time, political, cultural and societal atmosphere in which the story is set, the themes of the story, a log-line (a brief summary of the entire film/show restricted to one or two lines), the tone and style, character sketches and episode-wise / act-wise sequences. Once the bible is prepared, using it to understand in detail the characters, context and story – a screenplay is prepared which forms the backbone of the film. Usually, films do not stray far from their screenplays because screenplays are made for the exclusive purpose of producing a film. I would argue that a screenplay is a translation of a script (in our case, the 5-pager and 20-pager) into a format that can be utilised to make the film.

CRITICAL ANALYSIS OF THE RATIONALE APPLIED ― IN WHICH DEFINITION SHOULD A SCREENPLAY REST?

Justice Shankar has in paras 60.9 to 60.19 determined under which nature of work a screenplay would fall. While Justice Shankar holds screenplays to be ‘literary’ in nature, I believe it is an incorrect interpretation of law and screenplays should be termed as ‘dramatic’ in nature. Here are my contentions why Justice Shankar has erred –

In para 60.12, Justice Shankar says, “The definition of dramatic work in Section 2(h) expressly excludes cinematograph films. The screenplay of the film would, nonetheless, not merit inclusion in the definition as it cannot be regarded as a ―piece for recitation, choreographic work or entertainment in dumb show.”

Here, Justice Shankar has provided two reasons for disregarding screenplays from the definition of dramatic works. Let’s break it down into two segments to understand better.

(i) “The definition of dramatic work in Section 2(h) expressly excludes cinematograph films…”

Justice Shankar implies that by virtue of  ‘cinematograph films’ being expressly excluded from the definition of dramatic works in Section 2(h), a screenplay too should be excluded. If this is upheld, it would mean that screenplays must be considered to be a part of cinematograph films. When Justice Shankar states that dramatic work in Section 2(h) expressly excludes cinematograph films while deciding under which definition screenplays rest, he implies that a screenplay is included in the definition of a cinematograph film and because cinematograph films are expressly excluded in Section 2(h), screenplays too would be excluded. 

It would be incorrect to imply that screenplays are a part of ‘cinematograph film’ as Section 2(f) defines it as any work of visual recording and includes a sound recording accompanying such visual recording. There is no mention of a screenplay in the definition of cinematograph film.

Including a screenplay to be a part of a cinematograph film in para 60.12 and then proceeding to para 61.8 which discusses Section 17(b) and treating the screenplay to be a separate work than that of a cinematograph film creates a clear contradiction from the implication made by him in para 60.12.  A snippet of para 61.8 has been reproduced below for quick reference:

“Clause 17(b) covers a photograph taken, a painting or portrait drawn or an engraving or a cinematograph film made at the instance of any person. This clause, too, therefore, does not cover a screenplay.”

Justice Shankar seems to have included screenplays to be a part of cinematograph films in para 60.12 and then excluded screenplays from the definition of cinematograph films in para 61.8.

It is also important to give due regard to the IPRS v. Eastern India Motion Pictures Association Judgment at this stage. The same was mentioned by the plaintiff but disregarded by Justice Shankar in para 69 where he stated, “the Supreme Court noted that Section 2(f) of the Copyright Act included, per definition, in the expression “cinematograph film”, “the sound track, if any”. The screenplay of the film, per contra, is by no means included in the definition of “cinematograph film”. ”

The IPRS judgement which has been upheld by the Supreme Court states that the interpretation clause (f) of Section 2, which is not exhaustive, leaves no room for doubt when read in conjunction with Section 14(1)(c)(iii) that the term “cinematograph film” includes a sound track associated with the film. In the light of these provisions, it cannot be disputed that a “cinematograph film” is to be taken to include the sounds embodied in a sound track, which is associated with the film.  

Once the author of a lyric or a musical work parts with a portion of his copyright by authorising a film producer to make a cinematograph film in respect of his work and thereby to have his work incorporated or recorded on the soundtrack of a cinematograph film, the latter acquires by virtue of Section 14(1)(c) of the Act on completion of the cinematograph film a copyright which gives him the exclusive right inter alia of performing the work in public. In other words, a distinct copyright in the aforesaid circumstances comes to vest in the cinematograph film as a whole.

Similarly, if we are to follow the implication made by para 60.12 in Justice Shankar’s judgement, then by virtue of screenplays being included in the definition of “cinematograph film”, it is indisputable that once the author of the screenplay parts with his work to have it incorporated into a cinematograph film, the producer acquires a copyright which gives him the exclusive right inter alia of performing the work in public which is being infringed upon by assignment of the screenplay rights (i.e. in this context: a part of the copyright of the cinematograph film) to Bhaskar Chattopadhyay for novelization. 

(ii) “…The screenplay of the film would, nonetheless, not merit inclusion in the definition as it cannot be regarded as a ―piece for recitation, choreographic work or entertainment in dumb show.”

In my opinion, a screenplay falls squarely into the definition of dramatic work that is defined in Section 2(h). For a novice to the practices in the industry, the concept of a screenplay and its value to a film can be easily understood by going through the screenplays of some famous bollywood movies. These can be accessed here and here. A reading of these would clearly show that screenplays include pieces for recitation and choreographic work, the scenic arrangement or acting, form of which is fixed in writing or otherwise but does not include a cinematograph film.  [Section 2(h)]

In fact, it is Justice Shankar himself who in paragraph 66 of the judgement states that, “The fact that the film is a scene by scene, line by line, transliteration of the screenplay, is but obvious, as that is what a screenplay is meant for…”

It is published in Copinger & Skone James on Copyright, 15th Edition, 2005 that,

“There is no particular requirement as to the form which a work has to take in order to be a dramatic work. In many cases it is obvious whether a work is a dramatic work. A play is a prime example of a dramatic work and a screenplay is another.” 

A snippet from paragraph 5(a) of the plaint has been reproduced below, 

“Within the screenplay the movements, actions, expression and dialogues of the characters are also narrated. It generally means the developed version of the story, broken down into individual scenes, which include all the essential details such as scene headings, a description of the action of that scene and a clear indication of the verbal exchange between characters (dialogue) etc.” 

The Screenwriter’s Association (SWA – formerly ‘Film Writers’ Association) which is a registered trade union of screenwriters and lyricists mention in their FAQs about registration as on today that, “Registering your literary and dramatic work like story, screenplay, script, etc. (Work) with Screenwriters Association (SWA) means creating a public record of the date of the creation of your Work…” implying that screenplays can be considered to be a dramatic work.

The determination of the nature of screenplays will have serious implications to screenwriters and producers alike.  The Amendment Act 27 of 2012, added a provision to Section 18 which spoke of assignment of copyright by authors of literary or musical work included in a cinematograph film and their right to receive royalties but there was no mention of authors of dramatic works. (probably because this proviso deals with royalties stemming from films and the fact that the definition in Section 2(h) for dramatic work can be interpreted to mean that any dramatic work made for a cinematograph films can not be considered to be a dramatic work because the section mentions “does not include a cinematograph film”)

Mr. Jagdish Sagar (IAS), a practising IPR attorney in the Delhi High Court since 2006 and the sole copyright law representative from India at the TRIPS negotiations has also questioned these provisions. He says, “Now what, pray tell, is “an equal basis with the assignee of copyright”?  Does this mean that the authors of a few lyrics (literary works) and composers of song and background music are entitled to half the income of the film? What about the authors of dramatic works and artistic works? (screenplay, dialogue, choreography, sets? or costume designs if registered?). What about performers?  Does the legislature really intend that, after the producer has borne the entire cost and risk of production, he must share half the profits from a film or sound recording with some of the authors of a few underlying works, which in the case of a film are not even the most important underlying works? That would be discriminatory and ultra vires Article 14 for treating unequals as equals.”

It is said in the Statement of Objects and reasons in the Amendment Act 27 of 2012 that, “the main object to make amendments to the Act is that it is considered that in the knowledge society in which we live today, it is imperative to encourage creativity for promotion of culture of enterprise and innovation so that creative people realise their potential and it is necessary to keep pace with the challenges for a fast growing knowledge and modern society.”

The statement, though being a well-intended one, does not give us a clear picture whether the primary objective of the amendment is to promote a culture of enterprise (in our case, a producer) or creativity (the screenwriter).The rights of one will inevitably overlap and possibly damage the rights of another.

OPINION: THE NEED TO EXPAND THE DEFINITION OF ‘CINEMATOGRAPH FILM’

I believe that Justice Shankar stumbled upon a happy mistake in para 60.12 when he implied that screenplays must be considered to be within the ambit of the definition of a  cinematographic film. 

I think that the definition of a cinematograph film should be expanded to include screenplay as the latter is just a textual representation of the former. One can view films made on the basis of their screenplays running parallelly to understand how reliant a film is on its screenplay here and here.

Screenplays are either (i) works commissioned by the producer after gaining confidence in the 5-pager and 20-pager scripts provided, or (ii) Prepared and pitched by freelancing screenwriters to production houses for the purpose of making it into a film. 

Screenplays come into existence for the sole purpose of execution of production of films. As I mentioned earlier, films do not stray far away from their screenplays. Though screenplays are ‘literary’ in nature (in the sense that is written material not visual material) and therefore, objectively different from cinematography work i.e. videographic material, they should be considered inseparable from one another and protected under the same bundle of rights because one can not exist without the other. A good analogy to further elaborate will be that of graphical notations in music. The graphical notations for music to be played on a guitar can be in the form of chord charts or fret boards. These notes though being ‘literary’ in nature exist solely for execution on the instrument and the player will require it to produce music. Because one can not exist without the other, they are considered inseparable and protected under the same bundle of rights as a ‘musical work’.

If the current judgement is followed, and screenplays are to be considered as separable from their films (assuming that the author does not enter into a contract granting exclusive rights to a producer)  the author of the screenplay can give screenplay rights to more than one person at the same time or at different times as seen in the current case. Juxtaposing this with the physical copy doctrine (on which Indian courts are not consistent), the result is that we will have “similar” movies. Lokesh Vyas, in his article discussing the same has provided a table which displays Indian Court’s inconsistency, it has been reproduced below for easy reference. The entire article can be accessed here.

This “similar” movie aspect can be taken in two ways:

If we take the physical doctrine principle as the correct premise, then the existence of different movies based on the same screenplay would not constitute infringement despite the movies being effectively a copy of one another. However, this would also mean that the producer of the first movie would have no legal protection against any subsequent copies. Additionally and more importantly, do we want to encourage similar copies of work to exist without any protection?

On other hand, if physical copy doctrine is not applied, then the movies made after the first movie (on the same screenplay) would be an infringement of the first one. This would again be a conflicting situation because the author of the screenplay writer would not be able to exercise their exclusive right to make or authorise the making of more than one cinematograph film in respect of their work as all further copies will run the risk of being infringed. 

CONCLUSION

The judgement has, while offering some much needed clarity on the status of underlying works in cinematograph films, opened up a whole host of other issues. First, in the field of core jurisprudence, regarding the nature of screenplays & secondly, on the infringement front, who does the copyright act aim to protect and to what extent?

One must read Justice V. R. Krishna Iyer’s otiose (his word, not mine) footnote in the IPRS judgement. It explores the question that is the root of all questions, who does the copyright act aim to protect? Perhaps, if not in leading to appropriate legislation, it has finally found some purpose in telling us that this is not a new conundrum but one which has been haunting the legal fraternity since the beginnings of copyrights.

Image Credit: The Criterion Collection