Remake Rights of Cinematograph Films

By Pickle  November 10, 2020

The royalty payments to literary Authors pursuant to Section 18 & 19 of Copyright Act 1957 read with Copyright Rules have to be explicitly evaluated at this point of time, says IP and Media advocate Shekhar Mennon

Remake rights acquisition of Cinematograph Films exists as common trade practice in the film industry since the invention of celluloid. On acquisition of Remake right, the primary copyright that gets assigned is the Original Literary, musical, dramatic and artistic work(s) and not the Cinematograph film work per-se of the old film producer because the film producer who is acquiring the remake right , he himself produces the new Cinematograph Film work which will be with him for the term till Copyright subsists and that’s for 60 years pursuant to Section 26 of Copyright Act 1957 and not in perpetuity !

Notwithstanding above, the interesting point that being discussed here is on the Royalty payments by the Producers to the Literary work Authors on film remake rights acquisition,  post the Copyright Amendment 2012. Literary work authors of Cinematograph Film specifically considered herein are : Story writer, Dialogue writer, Dubbing language writer and subtitling writer of any language.

Its well known within the film industry that prior to June 2012, sharing of the proceeds with the literary work Author incorporated in Cinematograph Film work never happened because of the established copyright principle in reference to Indian Performing Rights Society Limited (IPRS) v. Eastern Indian Motion Pictures Association- AIR 1977 SC 1443 wherein the Producer is the first Owner, unless if there exists any contrary provisions, which rarely happened (exceptions may be there, but chances are remote).

However , post the Copyright Amendment 2012, in Section 18 & 19 of Copyright Act 1957, significant amendments got introduced wherein the literary and musical work(s) gets incorporated in the derivative rights of Cinematograph Film work and Sound recording work, the said literary and music authors cannot waive the right to receive the royalties to be shared on equal basis with the producer and tightened with further stringent legislation that if the royalty sharing on equal basis are waived off then the whole contract  becomes void. Attached herein the link of Copyright Bare Act for quick reference https://copyright.gov.in/Documents/CopyrightRules1957.pdf

Please note that receiving royalties , equal sharing , utilisation of work in any form  and void contract provisions of Section 18 of Copyright Act 1957 read with Copyright Rules 2013 is ONLY for literary and musical works incorporated in Cinematograph Film & Sound recording work(s) and NOT for Dramatic (screen play writers) and Artistic work Authors. But interestingly Section 19(8),(9) & (10) on mode of assignment it protects for  ANY WORK which includes original Dramatic & Artistic works. Whatever the case may be , original Literary and Musical work(s) are undoubtedly protected u/s 18 & 19 of the Copyright Act 1957 without any iota of doubt but Dramatic & Artistic are in legal limbo for debates and arguments and it’s not the subject matter of this write up.

Now coming back to the moot question of this article ~  does  the literary work Author(s) – Story writer, Dialogue writer, sub titling writer, dubbing writer etc get the equal sharing on royalty from the Film Producers, post the Copyright Amendment of 2102 on sale of re-make rights as provided under section 18 & 19 of the Copyright Act 1957, read with Copyright Rules 2013 ?

The answer is – probably NO,  despite of having strict copyright legislation in place. From 2012 onwards thousands of remake film rights would have been concluded , but the situation of sharing of royalty with literary work Authors are doubtful. If it’s happening , the fraternity of Literary Authors would be proliferating with new IP creations and if not the intention of the copyright legislation will be buried in statute books only.

Thus, those Literary & Musical Authors who are getting royalty on equal share basis on the selling of  remake rights by the Producers, the intention of the copyright statute being implemented properly and if not , then the limitation period for filing the suit is always open for the literary Authors / for the NextGen of the said literary Authors because of Section 22 of Copyright Act 1957 . Please note that the cause of action is continuous and it will remain till the Copyright term exists for the Literary Authors or to his legal heirs. Thus, anytime the present or future generation of Literary & Musical author can claim from the film producer which means the producers are always on potential contingent statutory liability.

For public limited company or closely held megalith media-entertainment conglomerates, the repercussions and ramifications will be more severe as it will seriously jeopardise the IP Valuations, stock market matrix, tax incidences (both direct and indirect taxes) etc in future date.

Thus , the royalty payments to literary Authors pursuant to Section 18 & 19 of Copyright Act 1957 read with Copyright Rules have to be explicitly evaluated at this point of time by the head honchos, CEO, Board members and principal officers or else in any future date, eroding of capital and net worth of producers and / or of companies are imminent on tabulating the royalty payments, damages, fines, penalties, statutory liabilities etc by the attorneys.

Shekhar Mennon, is an IP & Media Lawyer and has gained comprehensive exposure in legal, business and strategic functions from Entertainment industry, Copyright Societies and Broadcasting organisations. He bring forth the considerable experience from one of the largest media house – News Television India (presently STAR India) , where he held the position as Company Secretary & Sr. Legal Counsel and being the Board member in holding and subsidiary companies till 2001.Presently an Advocate practicing from 2002 at Bombay High Court as well as in Supreme Court of India.

 

 

 

 

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