Read the following case on Copyright Law and answer the questions that follows : The present case is in relation to widely publicized Telugu film entitled 'Sardar Rubber Singh'. This is a film that stars Mr. Savan Kalyan

CS Professional · Intellectual Property Rights - Law and Practice · PYQS · June 2017
Read the following case on Copyright Law and answer the questions that follows : The present case is in relation to widely publicized Telugu film entitled 'Sardar Rubber Singh'. This is a film that stars Mr. Savan Kalyan, at actor of considerable renowned in the Telugu film industry known as Tollywood. The movie was schedule to release on 8th April, 2016. From August 2015 Sardar Rubber Singh was widely advertised. The Plaintiffs themselves admit to having seen posters in January 2016, but waited till March 2016 for the trailer. Sardar Rubber Singh is scheduled for release on 8th April, 2016. The Suit was filed on 24th March, 2016, at the very last minute. Defendant says that Sardar Rubber Singh has been produced with a ₹ 65 Crore budget. It is scheduled for theatrical release in 2000 screens worldwide and over 600 screens in Hindi. Back-to-back distribution and commercial agreements have been executed with several large cinema chains in India, U.S.A. and across the world. The case was filed on behalf of the plaintiff Aitraaz Khan. The Plaintiff alleged infrigement in respect of his film 'Jabaang' on two footings. That is copyright infringement and passing off. Two films were produced by the Plaintiffs Aitraaz Khan. The franchise features. Mr. Balwan Khan who was shown as a colourful police officer known as 'Chulbul Pandey'. The first issue is that the Bulbul Pandey character from the Jabangg films has been infringed by the Defendants in their forthcoming film 'Sardar Rubber Singh'. This is a sequel to the Defendants' hugely successful 'Rubber Singh', a remake authorised under a written and undisputed assignment, of the first 'Jabangg' film. In 2009/2010, the Plaintiff produced and released the first Jabangg film. The film script, story, screenplay and dialogue were written by Anubhav Singh, hired by the Plaintiff Aitraaz Khan on a commission basis for that purposes. The Plaintiffs created the unique character of Bulbul Pandey, portrayed by Mr. Balwan Khan. This character is described as "a corrupt but fearless police officer". According to the plaintiff there are various features that make this character unique they are: (a) Bulbul Pandey (portrayed by Mr. Balwan Khan) plays a corrupt but fearless police officer. He lives with his family and has a troubled relationship with his stepfather and half-brother. He calls himself "Robin Hood" Pandey. (b) Bulbul Pandey has his unique, funny and bizarre way of dealing with rogue elements. The character has developed a unique dance style. The entrie character of Bulbul Pandey was that of an endearing, loving and funny police officer, a spontaneous and peculiar laugh adds charm to his steps. Bulbul Pandey rides a bike in the movie. (c) Bulbul Pandey wears aviators and has a unique style of tucking the aviators on the back of his collar in the Film. (d) Bulbul Pandey has a well-built body type, neat close-cut hairdo and handlebar pencil-thin moustache. Though a police officer, he wears a uniform with the top buttons open. (e) Bulbul Pandey is a very light hearted police officer who dances with the other police officials at the police station. Even his fighting style has comic elements." The Jabangg film was extremely successful. This uniquely etched character of Culbul Pandey and it is suggested that this is no ordinary, generic or 'stock' police hero. Some two years later on 21st January, 2011, the Plaintiff entered into an agreement with Rameshwara Arts, a proprietary concern of the Savan Kalyan, for the remake rights of the first Jabangg film. As per the agreement the Assignee obtained absolute rights for remaking the film in Telugu language only. The Assignee will be having absolute rights to exploit the remade version of the film in Telugu Language only all over the world in all dimensions commercially and non-commercially. As per the agreement the term "Remake Rights" shall mean and included the rights to make a Film based on the Film and/or Script but not limited to the following: (a) The right to remake the Film in Telugu Language and for the Territory based on and using the story line, script, scenes, screenplay, dialogues, characters, picturisation, designs, dramatic work, artistic works and names of the characters, passages, title of the Film or any part thereof etc. of the Film in any manners as Assignee may deem fit the Film or the story line of the Film in any manner Assignee so chooses. (b) The exclusive right in the intellectual Property of the New Film including but not limited to the Copyright and all other ancillary rights and exclusive rights in the New Film and its underlying works. (c) Any and all other rights that are incidential to and are necessary for appropriate utilization of the above mentioned rights i.e. (i) and (ii) of this clause. As per the agreement the term "Script" means and includes jointly and severally the story, each script outline treatment, draft, re-write and polish and screenplay of the Film in Hindi with dialogues. Plaintiffs' case is that the Rubber Singh character portrayed br Mr. Savan Kalyan is nothing but an avatar of the Bulbul Pandey character portrayed by Mr. Balwant Khan. If Rubber Singh brough into existence a wholly different persona, then surely its creators and owners have the right to futher use that character and persona, no matter what any document said. Other than the name, there is no difference, and anyone seeing Rubber Singh on-screen, played by Mr. Savan Kalyan, will believe that he is seeing Bulbul Pandey albeit albeit with a different visage. Defendant's contention is that the name was different. The portrayal was different. The stylization was different. The locales were different. So too were his mannerisms, qualities and, most of all, his core value system, his moral compass: where Bulbal Pandey is fearless but corrupt, Rubber Singh is fearless and honest. This was an adaptation developed distinctively. The script or story line underlying Rubber Singh, is said to have been developed by Mr. Savan Kalyan himself, has an independent copyright. Further they informed that the agreement of 21st January, 2011 relates not to a licence but to an assignment, a very different thing. The Rubber Singh character for the first Telugu film, though a derivative character, was one that was unique to that particular film. This is reflected by the fact that there is an assignment in perpetuity and with exclusivity. Copyright vested with the Defendants within the meaning of Section 14(a) and (d) respectively of a literary work and a cinematographic film. The rights in the Rubber Singh character are wholly distinct from the rights in the Bulbul Pandey character. The rights in the Rubber Singh character vest in and only in the Defendants. Defendants claim was not only that the producers had copyright in the cinematography film but that they also owned the rights in the script, and that it was the entirety of all of this material that was assigned. There is also an argument in passing off that any person watching the Rubber Singh film is bound to recognise in the Rubber Singh's character as portrayed by Defendant Mr. Savan Kalyan, the Bulbul Pandey character portrayed by Mr. Balwant Khan. It is one thing to say that the character first portrayed by Mr. Balwant Khan is now being portrayed as an adaptation by Mr. Savan Kalyan. It is quite another thing to say that the two characters are exact and that anyone seeing Mr. Savan Kalyan's performance would think and only think of Mr. Balwan Khan's portrayal of a particular and character and none other. Again of this conflation of the two personas, and of the Rubber Singh character having no persona of his own, there is no evidence. The Court is of the opinion that both Bulbul Pandey and Rubber Singh wear their uniforms in a casual manner are hardly unique. The Rubber Singh character features a police officer who is both fearless and honest. The Bulbul Pandey in the Jabangg franchise is just as fearless, on the footing that we all want our heroes to be fearless, but he is at the same time corrupt, a nod to reality but hardly an aspiration. The setting of the two films is different, the Jabangg films are set in North India while the Rubber Singh films are in the Andhra/Telangana region. There are many other points of distinction too. Basing on the argument advanced and reasons explained in the present case the Bombay High Court is unable to find for the Plaintiffs on either a prima facie or balance of convenience, as a result the court decline ad-interim reliefs. Questions: (d) Discuss the terms Assignment and licenses, explain the procedure and conditions to be followed while entering in to an assignment.

Answer & Explanation:

The owner of the copyright can transfer his rights to any other person by way of either assignment of the copyright or by issuing licenses. The owner of the copyright in an existing work or the prospective owner of a copyright in a future work may assign to any person the copyright as per section 18 and 19. Sections 17 and 18 of the Copyright Act, 1957 lay down provisions as to in whom the copyright vests. Section 17 mentions that if a work is done by an author for a consideration for a publisher, the copyright in it would normally vest in the publisher subject to any contract to the contrary. Section 18 states that the owner of the copyright in an existing work or the prospective owner of in a future work may assign the copyright to any person, either wholly or partially and either generally or subject to limitations and either for the whole of the copyright or any part thereto. Modes of Assignment Section 19 of the Act provides that an assignment of copyright should be in writing signed by the owner of the copyright or by his duly authorised agent. Mere acceptance of remuneration or delivery of manuscript does not constitute an assignment of copyright. Oral assignment is invalid and it is impermissible in law (K.A. Venugopala Setty v. Dr. Suryakantha U. Kamath AIR 1992 Kar 1). This section requires that the assignment should be in writing signed by the assignor or by his duly authorized agent. The assignment of copyright should specify the assigned work, rights including and the duration, territorial extent of assignment and the amount of royalty or any other consideration payable to the author or his legal heirs. In case assignee does not exercise his rights within a period of one year from the date of assignment, the assignment in respect of such rights shall be deemed to have lapsed after the expiry of said period, unless otherwise specified in the assignment. The assignment of copyright in any work contrary to the terms and conditions of the rights already assigned to a copyright society in which the author of the work is a member is void. The Assignment of copyright in any work to make a cinematograph film does not affect the right of the author of the work to claim an equal share of royalties and consideration payable in case of utilization of the work in any form other than for the communication to the public of the work, along with the cinematograph film in a cinema hall. Amendment of 2012 to Section 19 Three clauses have been added with respect to assignment to Section 19 which basically says that royalty has to be paid to the authors whose work has been exploited in a cinematographic film other than by way of exhibition of the film in a cinema hall. This simply means that the authors are entitled to the subsequent royalties which may arise in the course of further exploitation of the film which includes their work. For example, they will also be entitled to royalty for satellite right, home video, internet right etc. This again strengthens the position of the authors of the work are the actual owners of anything apart from their work in the cinematographic film. The second clause that has been added is for sound recording and is the same as above. What the authors can do is register their work with a copyright society and thereafter license it to whoever they like. Licenses A license is different from an assignment as the licensee gets certain rights subject to the conditions specified in the license agreement but the ownership of those rights vests solely in the owner of the copyright. On the other hand, in case of an assignment, the assignee becomes the owner of the interest assigned to him. The original owner of the copyright transfers all his/her rights to the assignee and retains none. A license can be voluntary or compulsory. Voluntary Licensing Section 30 of the Indian Copyright Act defines what is meant by voluntary licensing. According to Section 30 the owner of the copyright in any existing work or the prospective owner of the copyright in any future work may grant any interest in the right by license in writing signed by him or by his duly authorized agent. Therefore, the copyright owner of any existing work or the prospective owner of any future work can grant any interest in the right by way of a license. However, it has to be borne in mind that in case of a future work, the license will come into force only when the work comes into existence. Compulsory Licensing Compulsory license is the term generally applied to a statutory license to do an act covered by an exclusive right without the prior authority of the right owner. Compulsory licensing allows for the use of protected (in this case, copyrighted material) without the prior permission of the owner of the right.

Topics: Copyright Law

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