Media laws and celebrity rights in India

Media plays a vital role in keeping us informed and updated on the situations that are happening in the country or even abroad. Media is one industry that has drastically evolved in the last decade. Few years ago, the media industry consisted of print and live performances only. With these advancements, come laws that find their application in the areas of Media and Entertainment which have vast segments involving television, films, radio, music, internet advertising, OTT content, celebrities, influencers, etc. The Indian Constitution does not separately provide for a provisional defining the Freedom that any form of media has. The freedom awarded to the media industry to freely practice its profession, has to be derived from Article 19(1)(a) which deals with the freedom of speech and expression.  Early cases in India related to Media and Entertainment laws were mainly under this Article. However, with changing times various issues arose in India, some of which include – Intellectual Property Related matters, defamation claims, advertising, sponsorship & endorsement deals, publicity rights, licensing, Contractual issues etc.

Unlike the media industry, rights of a celebrity under the Indian law are still a matter of ambiguity and confusion. A celebrity is someone who has attained popularity by virtue of their work. Under Indian law, artists and performers can be considered as celebrities and their rights are associated with that they create or their “Work”.

 Under the umbrella of Media and Entertainment Laws exists a wide variety of laws and their issues. These categories Are –

1. COPYRIGHT AND LICENSING ISSUES  –India’s film industry, which has both national and international audience, produces the largest number of films in the world. However, the industry continues to face a lot of legal issues on a daily basis.

• Cable Piracy, Video Piracy, Music Piracy  –  One of the most common issue faced today with the massive use of the internet is video and cable Piracy. Video Piracy refers to illegal production and sale of videos/movies. Cable Piracy is unauthorised transmission of films through the network of cables and Music Piracy encompasses  recording of music and unauthorisedly selling it. Often this music recorded is sold at a considerably lower price than the market rates due to which music producers suffer  huge losses. Such incidents bring to application the Intellectual Property Laws. Indian Copyright Act, 1957 prohibits any acts of piracy and penalizes the same. Moreover, the Information Technology Act, 2000 also provides for punishment if somebody is involved in copying or transferring data from somebody’s device without their authorization. Over the last few years, usage of CDs and DVDs have become uncommon and people usually watch movies on their own devices such as computers, telephones etc. Due to this trend, people often record movies on their mobile phones. It is therefore important to highlight that under the provisions of Cinematograph Act, 1952, the act of recording  movies in the theatre by any recording device, in order to produce a pirated ‘cam print’ of the movie, is illegal and thus punishable under law.
• Copyrights – There are certain legal aspects that are to be kept in mind before producing films.  The Producer, while executing the agreements, must clearly specify the rights under Intellectual property Rights, including screenplay, music, soundtrack, right to use the title of the film, the brand names used in the film, the actors’ performances etc. since each of these rights might belong to the same or to different individuals. In this regard the copyright over all these aspects of film shall be claimed by the producer under the provisions of  Indian Copyright Act, 1957.
• Licensing – In certain cases the Film is a derivative work. It means that the film is  based on a certain novel, books or any previously existing artistic work. While converting this novel into a film, certain rights are to be attained by the makers of the film from the actual copyright owner. In such cases if the copyright owner agrees, a Licensing Agreement is signed between the producer and the copyright owner which must include clauses providing for Grant of Rights, Representations and Warranties,  Price, Screen Credit etc.

2. CONTRACTUAL ISSUES –  The maximum application of the common law concepts is found in the Media and Entertainment Industry. Various contracts are entered into and executed between various performers/ artists as well as stakeholders. These agreements include –

• Artist  agreement – Whenever any artist gets into business with any company an agreement is executed between the parties as art in its inherent nature subject to many Intellectual Property issues. There are certain essential ingredients to such agreements which includes the details of the parties,  duration, royalty , artist’s rights, payment terms, cancellation, alteration to agreement.
•  Broadcasting Agreement– As the name suggests the broadcasting agreement provides for exclusive rights of broadcasting to broadcast channels. Broadcast as per section 2 (dd) of the Copyright Act, 1957  is defined as communication to the public either via wired or wireless medium. Most common example being the IPL, the broadcaster rights of which were first with Sony Network Picture for the first ten years and were later by Star India. This agreement covers aspects such as  Licensing Rights,  Intellectual Property Rights,  Promotions and Sponsorships, duration of such broadcasting rights, Payment etc.
• Films  Agreement –  Making a Film or a TV-series is not an easy job and involves different categories of people doing different jobs while making a movie or a soap opera. These categories range from producer, director, actors, crew, casting, script-writer, song composer, singers, etc. Each category requires an agreement laying down the responsibilities and obligations of parties and mutual dependencies and independent copyrights. Some of the common agreements related to film industry are –

1. Rights Purchase Agreements – These kinds of agreements are formulated and executed before production of movies between the producer and the script-writer or the song-writer. These are executed for the purpose of clarity that all the rights owned on the story or script written will be that of the producer and the script-writers or the lyricists are paid a certain  amount  for the work. Sometimes these agreements provide limited rights, this basically depends on the negotiations between parties.
2. Director’s Employment Agreement – The director is the head of the creative department of movie creation. He looks over casting, locations, costumes, props etc. The agreement between director and production house ensures the roles, duties and obligations of the director as he heads over all other aspects of filmmaking.
3. Production Contracts –   There are three categories  involved  who play a major role after director, producer and script is ready. They include crew, cast, and location. The agreements are signed between parties to lay down the kind of work they will be involved in, their duties and payment for the same. Most important of these are Casting Contracts, signed between the lead actors, actresses and production house, this agreement comprehensively mentions the duties of actors, cases if they are injured while shooting, the kind of acts they will be performing, Non-Compete Clause, compensation of the actor, the term of the project, amenities provided to the actor, rules of production etc.

CELEBRITY RIGHTS IN INDIA –

Imagine having a life, where someone is watching your every move. Where your single post on social media can make it to new headlines the next day. Where you have to be cautious with every word you speak! Scary, Isn’t it ? This is the less talked-about truth about the glamour world. The term “Celebrity”  does not merely confine itself to an actor or actress, but it includes journalists, politicians, singers, basically anybody who has attained popularity and is easily recognisable to the public. Being a celebrity comes with the disadvantage of zero sense of privacy. Not only this, the various other issues faced by celebrities include misuse of their pictures, photos, acts,  modification of their dialogues in a way that they are portrayed wrong. In fact, the general public and the media industry feels like they have a “right” on a celebrity – their life, their personal space, relationships, etc. What adds to this is the fact that the word celebrity per se has not been used in any of the Indian Legislations. However, there are certain rights that have been debated and some that exist by virtue of other rights related to Celebrities.

• Personality Rights – Personality is a characteristic  feature of one’s life, a person makes a lot of efforts and goes through a lot of struggles to create a remarkable personality for themselves. For celebrities this maintaining image/ personality becomes more important. In India, the celebrities are given a lot higher value, which leads to product endorsements by celebrities in advertisements etc. This in a way represents that celebrities believe in the product and rely on that people buy the products. However, at several instances the images of these celebrities are misused and used for promotion etc without their consent which leads to violation of their rights. These rights are in some manner protected under the Intellectual Property Law Legislations such as Indian Copyright Act, 1957 and Indian Trademarks Act, 1999. For instance, as per the Section 38 of Indian Copyright Act the authors and the performers have the right to be given credit and  claim authorship of their work and have a negative right restraining others from causing any kind of damage to their work which consequently disrupts their reputation. Moreover,  Indian Trademark Act also preserves the right not to misuse names of persons by Parties who do not have the right to do so. However, this does not suffice to give enough protection because this merely covers authors and performers whereas in rising modernity, in a trend of influencers and apps that can make people popular there is requirement of clearly formulated provisions for protection of personality rights of celebrities.
• Privacy –  India has recognised Right to Privacy under Article 21 of Indian Constitution as a fundamental right. This right comes as a  privacy major concern for celebrities as the media is involved in minuscule details about the lives of celebrities, such as places they visited to dresses they wore, their kids, their personal life, their romantic relationships etc.  These are then published and circulated on various media platforms which became more common with the rise of social media.
• Publication Rights –  The right to privacy  along with Personality rights together form the crux of Publication Rights. The invasion of privacy by the media and using images of celebrities without their consent and then Publication of scandalous news collected which is not true leading to harm on reputation of celebrities is common in India. These kinds of acts had led to various lawsuits in Indian Courts. In the case of Titan Industries Ltd. v. Ramkumar Jewellers the Delhi High Court observed that the identity of a famous personality or celebrity can be used in advertisement for commercial purpose, subject to the respective personality’s consent and approval regarding the time, place and nature of usage. The Right to Publication  became more recognized after the Supreme Court recognized Right to Privacy as a fundamental Right.

ARTISTS RIGHTS

It has been believed that creation of  humans is the artistic work of God. The human creates art and beauty to the existing work of God. Even after this importance the artists don’t earn enough, The reason being the abuse of their artistic rights. The artistic rights are protected under Section 53A of the Copyright Act, which provides for Resale rights for artists. As per this  section, certain artists or their legal heirs enjoy a ‘resale share right in original copies’ of their works provided that the resale is for a price exceeding ten thousand rupees. The original copies referred to in the said Section refer to an ‘original copy of a painting, sculpture or drawing, or of the original manuscript of a literary or dramatic work or musical work’, and to benefit from the right contemplated by this provision of the statute, the artist must have been the first owner of rights under section 17 of the Act.

This section provides the advantage of obtaining royalties to artists. However, the phraseology of the Section has been subject to criticism time and again.

CONCLUSION

The Media and Entertainment world is very popular but there still lacks a legal-framework for protection of stakeholders involved in the Entertainment Industry, such as Celebrities and Artists. The need therefore, is proper framework and recognition of such rights and amendments to eradicate the ambiguities in provisions that talk about such rights so that the celebrities and artists could have legally protected rights.