2014] F-75

Actors in India: Asking to bestow their Morality Rights

Monika Verma*

Bollywood Actors are considered as to be the lifeline of Indian Society. However, this lifeline is getting weak day by day due to the infirmities getting cropped in the Copyrights Act of India. In the recent years, the morality rights are not acting morally across the country. Actors are recognized as a puppet in the hands of the producers. The issue of moral rights is not a new one but it was raised time and again by the actors and singers. One of the legend singers of Indian Cinema, Lata Mangeshkar had asked for paying royalty to the singers by the composers. Till now, the tussle between the actors and producers are very common. The copyright issue needs to be cleared on the point of recognizing the moral rights in its true sense. Moral rights should be recognized as an obligation towards the authors, singers or actors. The present legal position undertaken by the Indian Copyright Act has failed to assess the morality rights issue of the actors. Morality rights should not only be raised for authors but to the actors also. This article argues that moral rights determine the spiritual and non-commercial right of an author or the artist. The author tries to make a critical assessment regarding the present legal trend and asking for an overhaul in the current moral rights issue.

Manisha Koirala Case and Copyright exposure in the movie. Koirala’s Protection: contentions were purely based on libel Moral rights are the rights of attribution and slander under law of torts, but there and integrity over the works performed.1 was no remedy available to her on the The Manisha Koirala case has unveiled basis of moral rights protection which the lacunae of the moral rights protection could have been conferred to the actors given to the actors. The case came up as under Copyright Act of India. In the Manisha Koirala v. Shashilal Nair2 where Indian Copyrights Act, morality rights the lead actress ‘Manisha Koirala’ to the actors in a film have not been prayed for injunction of the release of the specifically mentioned. Such a need to movie ‘Ek Choti si Love Story’. In the amend copyright law is being articulated not only in India, but also in several movie four shots were being performed 3 by a double, revealing some bodily global fora.

* 4th Year B.A(Hons.)LL.B(Hons.), National University of Study and Research in Law, Ranchi (Jharkhand). 1. Sterling J., World Copyright Law (Sweet and Maxwell, London), 1998, p. 55. 2. 2003 (I) AIIMR 426 3. Adler Bernard, “the Proposed New WIPO Treaty for Increased Protection for Audiovisual Performers: Its Provisions and Its Domestic and International Implications”, 12 Fordham Intellectual Property Media and Entertainment Law Journal, 1089 (2002).

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There always exists a controversy on the It brings ‘acting’ as a dubious work, topic of whether the celebrity can extend without any clarification about its protection on their own work? In Indian protection as a copyrightable subject Performing Rights Society Limited v. Eastern matter. If a work is itself not a subject India Motion Pictures Associations4, Justice matter of copyright protection then it Krishna Iyer opined that artists enjoy would be very difficult to establish the protection in the music work while the fact that actors are entitled to claim even producer enjoys protection for the work the morality rights in any work. as a whole. This shows that the work of Work under Section 2 of the Copyright actors has not been mentioned as such by Act, 1957 includes literary, dramatic, the judicial precedents. Actors mainly musical, artistic work and cinematograph depend on the producers in order to get films. Under Section 32(a) of German their royality and fix their morality rights. Copyright Act (Urhg), performers (such However, the morality rights itself does as actors and dubbing actors) can be not give adequate protection to the actors. considered as authors provided that their Manisha Koirala’s work in the movie was creative contribution to a work amounts distorted in such a way that it could to an intellectual creation in its own right. hamper the reputation of the actress and Thus there is a need to create a specific so there was a need of addressing the provision in the present Copyright Act of plights of the actors in films. India so as to bring a clear consensus of considering the work of actors at par with The Copyright Act in India that of authors. Actors: As performers under Indian has not given any specific Copyright Act. provision related to 'acting' Section 2(qq) defines performers under the Copyright Act, 1957, which includes actors, singers etc. This shows that even Acting: As a ‘work’ actors are being given the performers right. The Copyright Act in India has not given Performer’s right includes economic any specific provision related to ‘acting’. rights, moral rights and non-tangible Thus the question remains unsolved as rights. Non-tangible rights include the to whether acting comes within the right over the persona of the performer6, purview of ‘work’ or not as defined under the right against use of likeness or name Section 2(y) of the act. In Fortune Films v. of the performer7. Thus it seems that the Dev Anand5, the Division Bench of authors are well protected under the Bombay High Court held that acting does interest of performer’s rights under not come within the purview of a ‘work’ Copyright Act. However Section 38(4) of and so cannot be entitled to claim the act of 1957 specifically brings an copyright protections. Actors are exception to the performer’s rights. It considered as performers under reads as “Once a performer has consented Section 2 (qq) of the Copyright Act, 1957. to the incorporation of his performance However acting has been mentioned in a cinematograph film, the provisions under Section 2(h) of the Copyright Act of Sub-sections (1), (2) and (3) shall have 1957 which includes only in the dramatic no further application to such work and does not include performance”. This shows that in case the cinematograph films. actors have performed the work in a

4. (1977) AIR SC 1443 5. (1079) AIR Bom 17. 6. Onassis v Christian Dior, 122 Misc.2d 603 (1984) 7. Presley v. Russen, 513 F.Supp. 1339 (D.N.J 1981)

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Published in Articles section of www.manupatra.com 2014] Actors in India: Asking to bestow their Morality Rights. F-77 cinematograph film then they cannot such as actors8, partly due to India’s claim any protection as per their insistence during negotiations, leading performers rights. Thus once they receive several commentators to opine that this royality, they cannot claim any protection. was due to the powerful producer’s As per new Copyright Amendment lobby in both Hollywood as well as Act, 2012, a new provision Section 38B(b) Bollywood which seeks to deny actors 9 has been added in the copyright which any rights . specifically mention that ‘‘the performer Authors are being given the special rights of a performance shall, independently of in order to justify their creativity and not his right after assignment, either wholly or merely the economic and commercial partially of his rights, have the right to interests. Similarly, actors use their own restrain or claim damages in respect of any skill and labour in order to bring distortion, mutilation or other modification creativity in the movie. If authors get right of his performance that would be of creation, then why same right can’t be prejudicial to his reputation’. Thus the conferred to the actors? Authors can only protection has been widened now, to demand for an injunction under Order 39 protect the interest of the actors doing Rule 1 and 2 of the Code of Civil performance in a cinematograph film. Procedure without any specific copyright The question as per Section 2(q) of the protection. However many authors like Copyright Amendment Act 2012, which J.K Rowling, once sued durga puja samiti defines a performance as ‘a performance in kolkata, who prepared the theme of is any visual or acoustic presentation harry potter in the pandals. This shows made live by one or more performers’ that all the authors are now well remains unclear. The question remains concerned about their rights and so they unsolved as to how the performance in a can easily sue. But the same case doesn’t movie by an actor would be considered suit the actors because actors do not have as having performer’s rights. any remedy as such. Protection of Actors: Under Morality rights as per the International Conventions. A performer (musician, actor, etc.) has Indian Copyright Act 1957 an intellectual input in their performance have been given only to the over and above that of the author of the work. As such, many countries grant authors and not to the moral rights to performers as well as the actors as such economic rights covered by the Rome Convention (Arts. 7–9), and the rights of paternity and integrity are required by Actors: Need to be at par with the WPPT (Art. 5). The actors are Authorship considered as a performer for the Morality rights as per the Indian protection and so there is moral right, Copyright Act 1957 have been given only independent of economic rights of the to the authors and not to the actors as performer. such. As per Section 57 of the act, there However Rome Convention i.e exists special right which is conferred International Convention for the only to the authors. Authorship has not protection of Performers, Producers of been extended to include actors within Phonograms and Broadcasting its own. The WPPT has expressly denied Organization 1961, does not confer ‘moral rights’ to audio-visual performers

8. www.wipo.org/pressroom/en/releases/2002/p 302.html 9. Fiona Macmillan ‘The Cruel C: Copyright and Film’, 2002 Eur IPR. p 21.

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Published in Articles section of www.manupatra.com F-78 Manupatra Intellectual Property Reports (MIPR) [Vol. 1 morality rights issue10. Under Article 7 of Actors are becoming the puppets in the the Rome Convention, the performers hands of the directors and producers. So have right to prevent the broadcast or in order to bring a balance between the communication to the public of their economic interest of the producers and performance, unless this is made from a creativity of the actors, the need is to specify legally published recording of the the morality rights to actors. performance; the fixation (recording) of In India there is no provision of ‘right to their performance; the reproduction of a publicity’, In Haelan Lab, Inc v. Topps recording of their performance. But the Chewing Gum, Inc13, the US Court has WPPT confers right to license i.e the clarified that the right to publicity also distribution of recordings of their protects the ‘unauthorized commercial performance, for sale or other transfer of use of a public figure’s image’14. The ownership (Art. 8); the rental of recordings actor’s image is not at all protected in the of their performances, unless there is a Indian copyright laws. Therefore the compulsory license scheme in operation actors only demand for an injunction (Art. 9); the “making available to the related to libel or slander imposing public” of their performances (Art. 10), in tortuous liability to the Defendants. It’s effect their publication on the internet. high time that the actor’s morality rights Reasons for protecting Author’s should be confirmed and specifically morality rights mentioned in the Copyright Act. The first reason for the protection of Conclusion and Analysis author’s morality right is the It can be concluded from the above jurisprudential value given for the discussion on various legal aspects of upcoming of copyright laws in India. the moral rights issue, that till now no Copyright is related to creativity and 11 rights have been confirmed to the actors expression of ideas. Actors use their own in India. Therefore it is high time that talent and skill to bring justice to the theme legislatures should think over the of movie. Their expression, their style and existing Copyright Act and amend it their way of imparting a theme to one’s properly. Section 57 of the Copyright Act mind, all are subject of creativity and skill. 1957 should be amended and authorship Thus copyright protection must subsist 12 should also include actors within its with them. Norowzian vs Arks is a meaning. As per equitable remedy, famous English case, where the Courts merely royality given to the actors cannot recognized that acting in an advertisement serve their purpose. Their reputation and film is a dramatic work that is capable of image should be properly protected an independent copyrightable existence. within the copyright laws. Actors must It is awful to note that in India, there is no not be solely related to have the benefit of case as such which clearly say that the performer’s right but morality rights actor’s work is subjected to a separate equally subsist within them. Also India copyright protection. should look into the laws of other Secondly, confirming morality rights to the developed countries, who impart their actors would ensure their value more than copyright laws to their actors. a commercial interest of the film makers.

10. Celebrity Rights: Protection under IP Laws, Journal of Intellectual Property Rights, Vol. 16 January 2011, pp. 7-16 11. Laddie, Prescott and Victoria, The Modern Law of Copyright and Designs 671 (2000). 12. (1998 FSR 394) 13. 202 F.2d 866 at 868, (2d Cir. 1953) 14. Kirsten Anker, ‘Possessing Star Qualities: Celebrity Identity as Property’, 11 Griffith LR 147 (2002).

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