Copyright of Performers by B.N. Srikrishna

Copyright can be assigned by contract to another person who then gets the rights of the author. Assignments happen under contracts on payment of agreed amounts as licence fee or royalty granting permission to use the copyrighted work for specified duration. The use of the copyright by the assignee would then be lawful and not amount to infringement of copyright.

Infringement of a copyright is reproduction of the copyrighted work without permission of the author. It is punishable by a criminal prosecution and the infringer can also be sued for damages, with all pirated works being confiscated together with an injunction against continued infringement.

Certain actions in relation to a copyright are permitted by law as exceptions to infringement and they are: certain private or personal use; use for criticism or review and fair reporting if the event in which the author uses the work. These go under the concept of ‘Fair Dealing’.

Further detailed understanding of legal Provisions

In India we have the Copyright Act, 1957 which is protective of the original works produced by artists. Copyright act, amongst other things, provides protection to the work of various artists and performers. In essence, copyright bestows an exclusive right to artists and performers to engage with their own work or authorize the use thereof. The copyright act covers within its broad ambit, various forms of artistic works including literary work, dramatic work as well as musical work. As per the provisions of the act, the performers have the exclusive right to the following:

to make a sound recording or a visual recording of the performance

● reproduction of the performance in any material form.

● issuance of copies of performance to the public

● communication of it the performance to public

● selling or giving the performance for commercial purposes as well as to broadcast it

● Although, once a performer has, by written agreement, consented to the incorporation of his performance in a cinematograph film he shall not, in the absence of any contract to the contrary, object to the enjoyment by the producer of the film of the performer’s right in the same film

In 2012, the copyright act was amended to include extensive protections relating to performances by various performers including, an actor, singer, musician, dancer, a person delivering a lecture etc.

Accordingly, the performer now has the exclusive right to authorize, to make a visual recording of the performance as well as to issue copies/ communicate the work to the public.

How is choreography protected in India?

Choreography has been made part of the dramatic work while providing copyright protections. However, for protecting a choreographic right and to enforce against an infringement, such choreography should be ‘fixed’ in writing or otherwise. Although fixation in recorded film (video) is excluded.

Collaborative works and copyrights

Most artists (for e.g. a dancer) collaborate with various other artists to bring out a performance. In case of a dance performance, various other artists such as a script-writer/lyricist, musician, singer etc., come together to create the dance performance. The copyright act provides for a specific provision where the rights provided to each artist is exempted to any work made in the course of author’s employment under a contract of service, in which case, the employer will be the first owner. For performing artists such as dance, music, it is required to have a contract of service between each artist under the collaborative work as a performance producer/organizer to avoid future disputes between multiple artists.

Translations/Adaptations of Copyrighted work:

Author/ owner of copyright has the right to adaptations where any non-dramatic work is converted into dramatic or literary work. For eg., re-arrangement or translation of the work, (a book translated from English to a regional language in which case, the author of the book has right over such translation). Every adaptation by minor changes in swara etc. is not treated as a new work. However if the changes or modifications are so substantial as to make the work a new product, in which case copyright can be claimed in it by the person who has created such a new work.

Moral Right

Under the copyright act, an author of work can assign her rights to a person or organization. For eg., a dancer assigns his/her rights to a fine arts organizer for appropriate remuneration/royalty. The copyright act provides for moral rights that are personal rights granted to creators of a work, and have been embodied under the copyright act as ‘Author’s Special Rights’ which continue to remain in the dancer even after assignment of her work to the copyright society. As per the copyright act, an author can claim to be identified as the performer of the performance, to restrain or claim damages in respect of any distortion, mutilation or other modification of her performance that would be prejudicial to his reputation. These moral rights when taken in conjunction with the special rights conferred by the copyright act can enable appropriate action by the owner of the copyright even after assignment.

Performing Right Societies

Since every artist cannot take care of protecting his/her copyrighted work at all times, the law allows for creation of societies that help in protecting copyrights of rightful owners. These are registered societies in which the artists can enroll as a member, which try to protect the owner against infringement, by taking action against infringers and seek rightful royalties on behalf of the artists. Any interested person can seek a license for performance by paying the fixed charges which shall be remunerated to the owner of the copyright right as per the rules of the society.

What can lead to infringement of copyright?

Copyright in a work shall be considered to be infringed when any person, who is not the rightful owner of the exclusive rights, uses such work without prior permission of the copyright owner.

Without a licence, permission to use, or assignment of copyright of the copyright owner, no third party can use the work of the copyright owner for any purpose. The infringing acts would include any distribution, sale, hire as well as communication of the work for profit.

Can a personal use of copyrighted work lead to infringement?

The Copyright Act provides certain exceptions in case of fair use of the work. Fair use of any protected work shall not be an infringement of copyright.

Underlying lyrics and music compositions used in traditional dance and music items are centuries old hence in public domain. Such works would not constitute infringement. Even sound recordings used for teaching or for personal use would not constitute infringement.

What remedies are available in law for infringement of a copyright?

The Copyright Act provides for civil remedies in form of injunction, damages, accounts. Although if defendant proves that on the date of infringement, if he is unaware of the subsistence of copyright, the plaintiff shall not be entitled to any relief.

The Copyright Act also provides for criminal remedies in form of imprisonment from 6 months to 3 years or fine of Rs.50,000/- to 2 lakhs.

Known History:

1. The Academy Of General Education vs Smt. B. Malini Mallya, ILR 2008 KAR 1074, MIPR 2008 (1) 373

A new distinctive dance, drama troop or theoretical system was created by Dr. Shivarama Karanth, which was named by him as “Yaksha Ranga” which in his own words means “creative extension of traditional Yakshagana ”. Dr. Karnath apart from bringing in changes in the traditional form of Yakshagana on all those aspects viz., Raga, Tala, scenic arrangement, costumes etc., and also composed 7 verses or prasangas(incidents) for staging Yakshranga Ballet. The Dance drama was written and directed by Dr. Shivrama Karnath. After his demise, he passed over the rights to Dr. Malini Mallya through a will. The Dance drama was performed in Delhi by defendants without consent from the legal heir of Dr. Karnath. Defendants were to perform one of the 7 prasangas( sections of the dance drama) at Delhi.

On the action brought by the plaintiff as holder of the rights, the trial court held that the plaintiff was the exclusive owner of the copyright in the 7 prasangas. The court also issued a permanent injunction against the defendants from performing the 7 prasangas.

The trial court’s judgment was challenged in appeal before the High Court.

The High court upheld the trial court’s judgement and held that Dr. Karanth did bring about the changes in all aspects of Yakshagana by taking great pains in unearthing some lost raagas, identifying the songs which needed proper pruning and tuning, effected changes even with regard to the type of instruments used, the scenic arrangements, costume as well and thus left a stamp of his own on Yakshagana ballets. The High Court considered the following issues: (1)whether the changes brought about by Dr. Karanth both in relation to the musical and dramatic composition of the Seven Prasangas could be brought under the expression ‘literary work and books’ in respect of which Dr. Karanth had bequeathed copyright in favour of the plaintiff, (2) Whether dramatic literature is protected only under literary works or extended to the definition of dramatic work, (3) If Dramatic Work or Dramatic Compositions like “Yakshagana Ballet” have elements in common with literature and if printed texts of plays can be read as literature and whether texts of great plays are read as dramatic literature.

The High court finally held that In order to obtain copyright for literary, dramatic, musical and artistic works, the subject dealt with need not be original nor the idea expressed be something novel, but what is required is the expenditure of original skill or labour in execution and not originality of thought.

With this reasoning the Karnataka High Court upheld the trial court order and continued the permanent injunction against usage of Dr. Karnath’s works.

2. Lalgudi G. Jayaraman & Others v. Cleveland Cultural Alliance rep by its President Mrs. Uma Ganesan & Another, A.No.8120 of 2007, High Court of Judicature at Madras

Lalgudi Jayaraman & Ors. (plaintiffs) had created a Dance drama titled ‘Jaya Jaya Devi’. The plaintiff’s (music composer, script writer and choreographer) claimed that they had exclusive rights over the dance drama. The producer of the dance drama had paid honorarium and incurred initial costs in performance of the dance drama and he claimed to be rightful owner of the copyright in the entire dance drama.

The court held that It was clear that the plaintiffs were the artists who created the ballet and that Cleveland Cultural Alliance (defendant) paid an honorarium and reimbursed the expenses for the creation. But, there was no written agreement between the parties, to spell out their mutual rights and obligations.

In the view of the court, payment of honorarium and the payment towards reimbursement of ex­penses, established by the documents filed on the side of the defendants, were not adequate to establish either a contract of service or a course of employment. There was nothing on record to show that the proviso to section 17 came into operation, so as to confer copyrights on the first defendant. The plaintiff was granted an injunction to restrain the defendant from using the copyrighted material.

Quick concluding tip: It is generally difficult for individual performers to constantly monitor if their copyrights are being infringed and to enforce their rights by legal action. They should try and make use of the Performing Arts Society which can act as a watchdog on their behalf. That also saves them the trouble of having to sign individual contracts of assignments or licence every time someone wants to use their copyright by permission. All in all, it is best to keep in mind all of the above before using or engaging in creative work. Each case is unique in itself and legal advice should be sought before taking drastic steps.