Movie remakes and the copyright question

Movie remakes and the copyright question
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First Published: Sun, Oct 25 2009. 11 18 PM IST

Illustration: Jayachandran / Mint
Illustration: Jayachandran / Mint
Updated: Sun, Oct 25 2009. 11 18 PM IST
The English film industry (with its biggest hub in the US, popularly known as Hollywood) is now recognizing the Indian film industry as a creative partner.
The era of synchronization of the two biggest film industries in the world has arrived and Hollywood now clearly recognizes the value of the Indian market.
Illustration: Jayachandran / Mint
This means that Hollywood producers are keen for Indian remakes of their movies and are correspondingly becoming proactive in enforcing copyrights of their original films under Indian law. Recent news reports have detailed the action brought against makers of Hindi films such as Partner as it allegedly copied from the Will Smith starrer Hitch.
So, if old favourites such as Satte Pe Satta or Dil Hai Ki Manta Nahin took “inspiration” from Hollywood hits with carefree abandon (Seven Wives for Seven Brothers and It Happened One Night, respectively), today Indian film producers carefully approach international studios for remake rights to films such as the Owen Wilson starrer, Wedding Crashers. Such producers (once ready to rely rather heavily on “inspiration” from Hollywood) now tend to complete the legal formalities around obtaining the required rights for remaking English movies in Indian languages. They tend to be similarly careful when remaking old Bollywood classics or hits from other Indian languages.
A remake is a motion picture based substantially upon the same story, albeit with modernization or updating elements, differing in nature from a sequel (such as instalment in Spiderman or Lethal Weapon series), which puts the same characters in a different plot.
Accordingly, an assignment or license of the right to make a remake is the grant of a right to produce one or more motion pictures based substantially upon the same story as contained in the original motion picture.
It is now a settled principle of intellectual property law that one cannot have a copyright on an idea (say, the idea of seven brothers getting married to seven women and the related comedic situations) but only on the expression of an idea (the actual film made from the idea). In order to understand the concept, specific provisions of the Copyright Act, 1957 (Act) need to be examined.
A motion picture falls under the definition of a “cinematograph film”, and the term “author” in relation to a cinematograph film means the producer of such motion picture. Section 14 of the Act defines “copyright” as an exclusive right with the owner to make an adaptation of the concerned literary, dramatic, musical or artistic work. Additionally, section 51 of the Act provides that if an individual does anything, the exclusive right to which has been conferred upon the owner of the copyright, without a licence from such owner, the copyrighted work is infringed.
However, in the case of a cinematograph film, the connotations of the term “copy” has been covered under the term “adaptation”, thus providing the owner of the copyright in a cinematograph film, (i.e., the producer of the motion picture), an exclusive right to make a copy of the film. As a result, it can be ascertained that the owner of copyright has the exclusive right to remake a motion picture based substantially upon the same story, albeit with modernization or updating elements. This right to make a remake can, of course, be assigned and/or licensed, failing which, the making of a remake without a licence from the producer will be a copyright infringement of the original work. The test to decipher whether a particular motion picture is a remake or not would depend on the degree of intentional similarities between the two works.
Unlike the copyright law of many other countries, particularly in Europe and the US, the Indian Act does not include the term “derivative work”. However, the new work which is created by way of an “adaptation” of the original work can be construed as work in India which could correspond to the term “derivative work” as defined in other jurisdictions.
Under the Indian law, where the owner grants a licence of a remake of a cinematograph film to a third party, such a remake results in the creation of new work by the licensee and the copyright on such new work shall vest with the licensee unless there is a contact to the contrary. In the event that the owner of the original work wants to own the copyright in the remake, these rights shall have to be assigned by the licensee to the original owner by way of explicit contract.
Where the work is produced by the collaboration of two or more authors in which the contribution of one author is not distinct from the contribution of the other author or authors, it shall be a work of joint authorship.
In the case of a remake, if the original owner and the licensee collaborate with each other and with a common design produce a new work, then they will be regarded as joint authors and/or co-producers of the new work.
With the recent controversies of the remakes of numerous movies coming to the forefront, it is but a matter of time that procuring appropriate licences for making of a remake shall be a matter of practice.
The producers at large now are not only vigilant in procuring licences but are ready to adopt all appropriate measures in order to protect their rights in their original work.
This column is contributed by Anupam Pandey of AZB & Partners, Advocates & Solicitors.
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First Published: Sun, Oct 25 2009. 11 18 PM IST