Cinematographic Lyricists Right to Royalty: Myth Or Reality?
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Journal of Intellectual Property Rights Vol 16, July 2011, pp 335-340 Cinematographic Lyricists Right to Royalty: Myth or Reality? Kirti Dahiya† National Law University, NH-65, Nagour Road, Mandore, Jodhpur 342 304, Rajasthan Received 1 April 2011, revised 27 June 2011 This paper deals with the issue of a cinematographic lyricist’s right to copyright royalty after the producer of a film has been assigned the right. The position of law in India is not in favour of writers, who are often marginalized and cut-out from a share in the profits by generally exploitative and unfavourable terms of a contract. In the light of the same, the author’s view is that an amendment to the Copyright Act was long overdue and the Copyright (Amendment) Bill, 2010 is an affirmative step by the government to correct inequitable balance of interests that has plagued the Indian film industry. In order to arrive at a deeper understanding of the matter, reliance needs to be placed on the stand taken by the Indian judiciary with respect to the right of authors over lyrics used in songs in cinematographic vehicles. Recourse will also be taken to considerations on the basis of which the Bill is being pushed. An analysis of the lacunae that may exist even if the reforms are brought to fruition is concluded with certain suggestions to overcome them. Keywords: Intellectual property rights, copyright law, assignment of copyright, right to royalty The issue of the amendments being introduced in the to ensure just and fair distribution of revenue earned Indian Copyright Act, 1957 (ref. 1) by virtue of the because of the collective efforts of the writer, Copyright Amendment Bill2 has been consistently composer and the singer.4 The general industry raising eyebrows. The Bill proposes to restrict the practice so far has been that writers assign their right of lyricists and music composers to assign copyright over the lyrics, albeit reluctantly, in copyright of their works included in films and sound exchange for a one-time payment.5 This results in an recordings for use in media (other than as part of unfair arrangement with the first owner of the films or music recordings) to anyone other than their copyright having to give up all rights to the fruits of legal heirs or copyright societies. The debate reached his labour and ultimately watching from the side-lines a new level of fervour following the imposition of a while the producers draw in the big money. ban on noted lyricist Javed Aktar by the Film Federation of India in late December 2010 (ref. 3). Comparative Position of Law The Federation believed that the veteran writer failed As per Section 17 of the Indian Copyright Act, the to understand the ‘legitimate’ concerns and problems author of a work shall be the first owner of the of the producers before going up in arms against copyright therein, which in relation to a literary work them. The primary contention here being that since means the writer. However, Clause (c) of the above the producers bear the entire risk, if lyricists are to get section states that in the case of a work made in the a share in the profits then they need to share the course of the author’s employment under a contract burden of losses as well, which at the moment falls for service, the employer shall, in the absence of an squarely on the shoulders of the producers. agreement to the contrary, be the first owner of the This seems to be a spurious argument as the writers copyright therein. It is this provision, when read with merely want a percentage in total earnings, Section 18 that provides for exploitative contracts by irrespective of whether the song fails to rake in big means of which the author, who owns the copyright numbers or becomes a sensation. The reforms, which over the lyrics he has penned, assigns the same to the are a first of a kind as far as copyright law in India is producers of a cinematographic film. A typical clause concerned, are not being brought about with an in such a contract reads as follows: intention to harry the producers but as merely a means The lyricist hereby agrees that the lyrics shall ________ constitute a work specially ordered by the †Email: [email protected] producer and accordingly the lyricist expressly Published in Articles section of www.manupatra.com 336 J INTELLEC PROP RIGHTS, JULY 2011 acknowledges and agrees that the producer shall payments deposited by any person engaged in the be considered the first author and owner of the digital audio recording, analog musical recordings or lyrics for all purposes and the owner of all lyrics dissemination to the public by transmissions of the rights, without condition, restriction or song recording or musical work pursuant to Section limitation of any kind, and free and clear of all 1005, shall be distributed to interested copyright claims to royalties or other compensation, except parties. Clause (b) calls for the royalty payments to be as specifically set forth herein. The lyricist divided between two groups, namely the Song irrevocably and unconditionally waives all rights Recordings Fund and the Musical Works Fund. in respect of the lyrics to which he is now or in Clause (b)(2)(B) of the provision under consideration the future be entitled to under the Copyright Act, explicitly states that half of the 33 1/3 percent of the 1957 (ref. 6). royalty payments allocated to the Musical Works Thus, the terms of the contract involving the Fund shall accrue to the writer who is the lyricist of underlying work clearly call for the payment of a low the work and the rest shall remain with the music 10 sum of money upfront owing to an unequal publisher. bargaining power, following which the author loses the right to demand compensation for any subsequent UK Copyright Law In the United Kingdom, the Copyright, Designs use of the lyrics in a sound recording or its 11 distribution in any form. and Patents Act is the primary piece of legislation dealing with copyrights and their assignment. US Copyright Law Copyright protection subsists in original literary The copyright law in India is prima facie in works [as defined in Section 1(1)(a)] and vests in the consonance with that in the United States as per person who creates it unless the same is made by a which copyright protection subsists in original works person in the course of his employment [Section of authorship fixed in any tangible medium of 11(2)]. Such a copyright, by virtue of Section 90, is expression, from which they can be perceived, transmissible by assignment, by testamentary reproduced, or otherwise communicated and is disposition or by operation of law. In cases where an inclusive of literary works (17 USC § 201). Section agreement concerning the production of a film is 201 (a) of US Copyright Act puts forth that copyright entered into between the author and a producer, there in a work protected under this title vests initially in is a presumption of transfer of any rental right in the author or authors of the work unless it is the case relation to the film by virtue of inclusion of a copy of of a ‘work made for hire’ wherein the person for the author’s work in the film (Section 93A). However, whom the work is prepared is considered the author the right to equitable remuneration for rental [17 USC 201 (b)]. continues even after the author has transferred his Additionally, copyright in each separate rental right to the film producer and the same cannot contribution to a collective work is considered to be be assigned by the author except to a collecting distinct from the copyright in the collective work as a society. Such a right is only transmissible by whole and vests in the author of the contribution [17 testamentary disposition or by the operation of law. USC 201(c)]. Consequently, it was held in ABKCO Thus, in both UK and US, synchronization Music Inc v Stellar Records Inc that lyrics in a sound royalties, which are royalties accruing by utilization recording are subject to an independent copyright as a of a copyrighted work in a film, are the legitimate 7 literary work. The ownership of such a copyright right of the composer or song-writer, although there may be transferred to any person in whole or in part are differences in the manner in which they are 8 by means of conveyance or by operation of law or by distributed to the author. In connection with the same, 9 an agreement. the concept of ‘needle drop’ is used i.e. synch royalty In practice, typically, the writer and the composer becomes payable every time the needle drops ‘on the grant a music publisher rights over the work, either by record player’ in a public performance.12 transfer or contracting as a work for hire, in return for which the publisher provides a cash advance and French Copyright Law specified on-going royalties. Section 1006, Similarly, French copyright law also provides the specifically, Clause (a) when read with Clause (c) of requisite amount of protection to an author at the time the copyright law explicitly states that royalty of assignment of copyright. Such an assignment needs Published in Articles section of www.manupatra.com DAHIA: CINEMATOGRAPHIC LYRICISTS RIGHT TO ROYALTY 337 to be in writing and should necessarily state the It was contended by the appellants, before the Apex copyrights assigned and their intended use.13 Most Court, that if a person desires to exhibit in public a importantly, royalties of the author have to be in cinematograph film containing a musical work, he has proportion to the revenue arising out of the exploitation to take the permission not only of the owner of the of the copyright so assigned.