Lights, camera, action! Identifying performer’s rights

By Rahul Chaudhry, Lall Lahiri & Salhotra
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An interesting facet of copyright law is that in every work that is copyrightable, there is usually more than one individual with concurrent rights. These concurrent rights are differently defined and overlap with one another. The simplest example for explaining this can be a book. Of course, in accordance with the law, the author is the first owner of copyright in the work. However, the publisher too holds rights.

Not only is the publisher contributing financial resources to make the work available to the public, he is also taking upon himself the risks associated with publishing a book. A publisher buys out most economic rights in a book and is thereafter also a copyright holder in the work. Thus, the author now holds some financial and mostly moral rights in the book, while the publisher holds other financial rights. These rights, of the publisher and the author, independent of each other, also overlap.

Rahul Chaudhry Partner Lall Lahiri & SalhotraRahul Chaudhry Partner Lall Lahiri & Salhotra
Rahul Chaudhry
Partner
Lall Lahiri & Salhotra

In the case of musical, dramatic, cinematographic and other such works, the original rights are vested in the statutorily recognized original owners, i.e. composers in case of musical works, producers in case of cinematographic works, etc. However, the law recognizes creative input from a number of individuals involved in creation of these works and each person has exclusive rights according to their inputs.

This applies also to the performers of works. An actor reciting the words of a writer in the creative manner of the director, utilizing the resources of the producer, thus has exclusive rights for his work and is not left bereft by law.

While the concept of performer’s rights has been around for decades, it is not given much attention since in most cases the rights in such works are vested in the other part owners as well as with the original owner. Also, a performer usually performs for the benefit of the original owner and in most cases the performer’s consent is not only sought, but is implied. It is for this reason that jurisprudential analysis of this right is weak and judicial authority scarce.

Under Indian law, the concept of performer’s rights was first introduced in 1994 by an amendment in the Copyright Act, 1957, which includes broadcasters and performers as individuals able to enjoy copyright protection. Prior to 1994, performers were usually excluded under Indian law from claiming copyright in their work unless they had acquired the rights contractually. Now, the act recognizes actors, singers, dancers, musicians, jugglers, acrobats and so on, as having exclusive rights to their performances.

However, these rights are restricted to making sound or visual recordings of the performance, or dealing in, broadcasting or communicating such recordings for commercial gain. In other words, if these recordings were reproduced for purposes other than those consented to by the performer in relation to his performance, they would result in the infringement of his rights. Similar provisions for the protection of performer’s rights can also be found in the TRIPS agreement.

However, the great paradox in this case is that these rights are also vested in the producer and other individuals associated with the performance and usually all such rights are contractually vested in one person. Performers receive consideration for the transfer of these rights and are usually not part of the recording or broadcasting part of the work.

In one of the oft quoted judgments in the matter and one of the first of its kind, the Bombay High Court ordered Banyan Tree Events in 2000 “not to manufacture, market or sell” cassettes titled Nirala. In this case, the plaintiff’s performance was recorded, sold and distributed without their permission. This case is often regarded as being the earliest recognition of a performer’s rights to their performance in the manner expressed by the act.

A question that has been debated in relation to performer’s rights is whether the rights are only vested in unauthorized recordings of live performances or also in the case of recorded performances. This question was answered by the Delhi High Court in Neha Bhasin v Anand Raj Anand & Anr where the plaintiff alleged that the voice in a musical broadcast recorded by the defendant was hers, and that it had been marketed nationwide without giving her due credit. The court allowed the plaintiff’s claim and granted an injunction in her favour recognizing the existence of a performer’s rights even for recorded works.

Copyrights are difficult to enforce and the same is true for performers’ copyright. It is almost impossible to keep track of all the uses of a performance recording and extract royalties for such uses. The role of copyright societies here is important in ensuring the performer’s work is registered, licensed, properly managed and utilized. Such rights can also be enforced overseas by copyright societies through their reciprocal relations with other organizations through international conventions.

While performer’s rights are statutorily granted, they have rarely been enforced. It is imperative that such rights are recognized and enforced to ensure that their disregard does not result in stunting the growth of copyright law itself.

Rahul Chaudhry was called to the bar in September 2002. He joined Lall Lahiri & Salhotra in January 2004 and became a partner just four years later. Along with the firm’s founding partners, Anuradha Salhotra and Amar Raj Lall, Chaudhry is regarded as one of the most prominent faces of IP management in India.

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