History has shown copyright can be misused to suppress speech that does not conform to one’s views. Numerous takedown requests on platforms like YouTube demonstrate how this strategy is widely used by political parties, corporations, and individuals to silence opponents and critics. While many of these actions are intentional, there is a widespread misconception of copyright law as a framework designed to protect the rights of copyright owners.
The copyright infringement suit initiated by South Indian actor and producer Dhanush against his peer Nayanthara could fall into either of these categories: a wilful attempt to threaten someone that one dislikes or an action arising out of ignorance of the framework of copyright law.
What is the Dhanush-Nayanthara controversy?
The 2015 film Naanum Rowdy Dhaan (‘I’m a rowdy, too’) was directed by Vignesh Shivan, who married Nayanthara in 2022. The film has been credited with encouraging their union. It was produced by Dhanush’s company Wunderbar Films. When Netflix prepared to produce a biopic based on Nayanthara’s life, it wished to include excerpts from that film.
On November 16, in a public letter addressed to Dhanush, Nayanthara wrote that she had sought Dhanush’s permission to use these excerpts about two years ago but had been met with silence. As an alternative Netflix et al. decided to use a short video clip that Nayanthara claimed to have captured with her mobile phone during the film’s making to use in the biopic.
Dhanush responded to this use with the lawsuit.
How are films copyrighted?
Depending on one’s perspective — particularly on the power and gender dynamics within India’s film industries — there are two sides available to take. Which side depends on the answers to two questions: (i) Copyright in which work has been infringed and who is the copyright owner in that work?; (ii) whether a copyright owner has the right to completely control the use of some copyrighted work?
Copyright law treats a film as an amalgamation of various copyrightable components. So while copyright law vests the copyright of a cinematographic product with its producer, not all copyrights related to a movie necessarily lie with the producer.
Thus it’s important to ascertain which copyrighted work has been infringed by the video clipping. Information in the public domain (as of November 28, 2024) indicates no part of the original cinematographic work has been reproduced. If no parts of the original recordings of the movie have been used, the use of the clipping is unlikely to have violated the producer’s rights vis-à-vis the cinematographic film. This would also mean one has to carefully check the copyright statuses of the other components amalgamating in the behind-the-scenes (BTS) footage, including music.
Next, even if we assume Dhanush owns the copyright to the entire work, it isn’t an absolute right. The rights granted to copyright holders to control access to their work is counterbalanced by providing certain rights to society to access that work. Section 52 of the Copyright Act 1957 embodies this fair balance of rights within the copyright system — and Indian courts have consistently held that uses falling within the ambit of this section don’t constitute copyright infringement.
What is ‘fair dealing’?
The concept of ‘fair dealing’ as enshrined in Section 52(1)(a) is pertinent. The ‘fair dealing; section allows the people at large to use a copyrighted work for certain purposes as long as the use is ‘fair’. In determining whether a use was fair, a court may consider factors including the extent of use of the copyrighted work and the context of use.
In the present case, the clipping was used for a biopic of Nayanthara. Since the life of an actress is closely intertwined with her films, the use of short clippings from or related to her films may be deemed essential.
It’s also relevant that a movie producer may have entered into contracts to control BTS recordings. But the producer will have to show before a court the contracts that restrained artists from making or sharing BTS recordings and the courts should also check whether they are legally valid contracts.
The courts need to take a strong stance against unjustified legal threats using copyright law, particularly because copyright infringements are also subject to criminal remedies.
Arul George Scaria is a professor of law at National Law School of India University, Bengaluru.
Published – November 29, 2024 07:30 am IST
