Ownership, as a concept, is simple enough to understand. Or at least it used to be, back when the world and all our possessions within it were physical and tangible. It is arguably easier to establish and assert one’s ownership over physical items. Complexities started creeping in when the concept of ownership was extended to intangible items, with the growing recognition of an owner’s rights in their ‘intellectual’ property. While intricate laws were created to recognize these rights, to both encourage creativity and protect the economic rights of creators and owners of intangible items, these laws need to undergo constant development for numerous reasons, whether for the sake of progression and/ or to keep up with and address human and technological evolution.

As an owner, you can or are said to have the legitimate ‘right’ and ‘title’ to sell (and part with ownership) or loan (while retaining ownership) your possessions to others. Naturally, this means that no one else can sell or loan your belongings to others. The concept of sale, when extended to intellectual property, is known as an ‘assignment’ of rights, and a loan is known as a ‘license’ of rights. The assignment and/or license in relation to intellectual property can get complicated due to the multiplicity of rights contained within this intangible concept as also the multitude of, often creative, ways in which different intellectual property or parts of the intellectual property can be exploited.

The on-going dispute between Miramax and Tarantino highlights this complexity.

As the dispute is concerning a film, let us examine the rights in relation to such a work. A film is a combination of individual contributions that come together in the form of a recording, of all visuals and sounds that are produced. This includes a story (as also script/screenplay and dialogues), music (background music, songs, the lyrics, musical compositions and vocal performances of the singers), performances of the actors and dancers, images, artwork and any other ‘works’1 capable of copyright protection and those that are not capable of protection such as the contributions of Cinematographers, Directors, Choreographers, Action Directors, etc.

The (Indian) Copyright Act, 1957 (Act) provides that the person at whose instance a ‘cinematograph film’2 is made – which is usually a producer3 (as commonly understood and also defined in the Act), is the first owner of copyright4 of the cinematograph film.

Being the first owner of copyright, and by default, the owner (producer) has the exclusive right to do, or authorize the doing of, specific acts, in respect of the film5 or any substantial part of the film6.

While the Act clarifies that the recording7 of the film, as a whole/ amalgam, is owned8 by the producer, the issue that often arises for consideration is as to who owns the rights in the “underlying works” on the basis of which, the film is produced/created. As in the case of a film, the default “first owner” in the case of underlying works is the individual natural person referred to as the “author” of the work.

The Act and also copyright legislation in other parts of the world, however, allow the “author” to part with his/her ownership – assign it or license it – by a contract entered into with the producer. This has led to an “industry-practice” of deals where individual authors are either contractually commissioned by the producer to create their works, or such works are contractually assigned to the producer. Such a contract enables the producer to also become the owner of all the various, individual, underlying works, that comprise the film.

Resultantly, the producer will have the exclusive right to (itself or permit third parties to) use, exploit and monetize the film and all individual components of the film, in an unlimited and unrestricted manner, for the term of copyright. This can be done by exploiting the film in theatres, through broadcast and digital platforms, creating derivative works such as prequels, sequels, remakes, spin-offs, exploiting the music individually, creating merchandise based on the film’s characters, promotional material, artwork, images, posters and all other existing and future means of exploitation, which today, would also mean, the creation and monetization of non-fungible tokens (NFTs).

This is where the seemingly straightforward narrative/understanding of ownership ends. The world of commerce, especially today, does not work in such a simplistic manner. Enter the real world where (i) films are jointly produced by multiple producers who contractually agree to share or divide rights; (ii) certain acclaimed contributors (authors, composers, actors, etc.) do not agree to part with all their rights in the works that they have developed, and in such cases, producers agree to carve out certain rights/monetary benefits, which are reserved with the contributors; and (iii) depending on a party’s stature in the industry and hence their bargaining/negotiation power, rights can be structured, shared, divided and/ or jointly owned by multiple parties in many permutations and combinations.9

As one can imagine, the potential for disputes occurring, when rights are shared, is quite high, and more so when the terms of the contract that pertain to joint ownership or the division or sharing of rights are not clearly demarcated and defined. It becomes crucial to ensure that there is no ambiguity or overlap of rights in the contracts. Further, as we will see evidently from the dispute between Miramax and Tarantino, even when parties attempt to divide and clarify the division of rights carefully, they cannot always foresee and provision for new formats and futuristic technologies of exploitation of the rights, which could not have been contemplated, at the time of executing the contract.