Copyright is essentially a bundle of various rights [Narayanan, Intellectual Property law] which can be claimed over a certain categories of works, one of which is ‘Cinematographic Films’. Films are highly collaborative works, containing various creative contributions from a variety of professionals including the producers, directors, scriptwriters, actors, cinematographers, editors, singers, composers, music-directors etc. [Dougherty, Not a Spike Lee Joint?] Such varying contributions in a film may lead to complex questions relating to the rights and liabilities of these contributors. In order to avoid such situations, Indian law deems the producer to be the authors well as the owner of copyright in a cinematographic film. The fact that Indian law vests the sole rights of copyright in the producer has always been debatable considering that it is the director who combines all the elements of a film, say the screenplay, camera placements, acting, costumes, set and art designs etc. to make it a cohesive whole[Wagner, Motion Picture Colorization, Authenticity, and the Elusive Moral Right].Therefore, an amendment [The Copyright (Amendment) Bill, 2010] was sought to be introduced in the Indian Copyright Act, 1957in order to bring the director on par with the producer by making him not only the ‘joint author’, but also the ‘joint owner ‘of copyright in the film.
However, the Parliamentary Standing committee appointed to determine the viability of the aforementioned bill outrightly rejected the said amendment [Two Hundred Twenty-Seventh Report on The Copyright (Amendment) Bill, 2010].The committee observed that it is the producer who bears the entire financial burden of film-making and therefore, he should have the sole ownership over the copyright in the film in order to exploit it commercially.
In this backdrop, the present article looks at various concepts underpinning the debate mentioned above and would attempt to see whether the producer, who is the owner of the copyright in a film, should be considered as the author of the film?
Indian copyright act, 1957does not define an ‘author ‘per se, however, it designates an author for all categories of copyright table work envisaged under the act. An author is basically the creator of a work[Copyright, Designs and Patents Act, 1988], or, the one who has actual control over the creation of a particular expression. Therefore, in order to assess who the de facto author of a film is, one needs to compare the role of the producer as against that of a director.
Producers primarily supervise a film-project with a purely commercial objective and their main tasks include securing funds or adistribution deal for the movie. Apart from this, they sometimes coordinate with the director on a daily basis, or, help in creative activities like selecting crew and editing the film etc. On the other hand, directors have an extensive role in film-making which begins even before the production starts to the final editing stage. The director has the painstaking task of taking various components of a film, for instance, screenplay, cinematography, acting, singing, music, choreography, editing etc. and transforming them into an ‘artistically coherent form’
On a prima facie comparison, it seems that the role of a director is far more creative than that of a producer in a film. It is the director who uses his creativity in transforming the haphazard constituents of a film into a wholesome package. Such transformation usually infuses the personal vision of the director into the film, which is the underlying philosophy of the famous ‘Auteur theory’ [Staples, The Auteur Theory Re-examined]. The said theory says that a film is the personal artistic expression of the director and the same outshines all other contributions in a film [Truffaut, A Certain Tendency in French Cinema]. This theory seems to give us a reason as to why the film-critics always use the director as a barometer to evaluate the movie. Therefore, it is submitted that the director must be considered the author of a movie.
This proposition can be further strengthened by certain justifications which enable one to claim intellectual property rights over a work. First, as the director has a painstaking role in the process of filmmaking, he can validly be called an author as per the Lockean Labour justification [Justin Hughes, The philosophy of Intellectual Property,]. Second, as a film manifests the personal expression of the director, his claim to be an author of the film is squarely justified under Hegelian personality justification.
The director must entail certain ‘moral rights’ by virtue of his being the author of the film[Amar Nath Sehgal Vs. Union of India2002(2) ArbLR130 (Delhi)].Moral Rights are the rights which protect the non commercial, personal, or spiritual interest of an author in his work[Rajan, Moral Rights in Developing Countries].Indian copyright act, 1957recognises two of the moral rights of authors viz. the right to attribution and the right to integrity. The importance of these special rights was highlighted by the Hon. Delhi High Court in Smt. Mannu Bhandari Vs. Kala Vikash Pictures Pvt. Ltd.[AIR1987Delhi13] wherein it was observed that even the terms of contract cannot negate the special rights envisaged under § 57 of the India Copyright Act. Thus, it is submitted that director must be considered the author of a film and he must enjoy all the moral rights available to him under the law.
It is true that an author brings a work into existence, however, the work gains its material worth by the interference of an entity which has substantial resources to commercially exploit it. In films, it is the director who creates a work but, it is the producer who takes the responsibility of packaging the film into a marketable commercial venture. It is always the producer who either himself invests substantial money in the film or arranges finances from somewhere and solely undertakes the entire market risk. Thus, it is would be grossly unfair to the producerto not grant him ownership rights over the film and to not afford him the liberty of fully exploiting the film commercially, and consequently, make profits or at least recover his investment in the movie. Thus, despite the director being the author of the film, the ownership over the copyright in a film must still vest with the producer subject to the moral rights of the director.
As far as the basic argument of this article is concerned, one could draw an analogy between publication of books and filmmaking. The Statute of Anne had vested the copyright in the writers of the books, which they could easily transfer to the publishers. Similarly, the present article also suggests that the director should be considered the ‘author’ and should have the liberty to assign his ownership rights of the copyright to the producer under their contract, subject to inalienable ‘special’ rights of the former. It is submitted that the position proposed in the article would truly be a ‘win-win’ situation because it would incentivise the authors to come up with better movies, yet at the same time would not affect the commercial interests of the producer community.
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