VARIOUS ISSUES AND MECHANISMS FOR SETTLEMENT OF DISPUTES IN THE ENTERTAINMENT INDUSTRY Contact Us for Intellectual Property Services BananaIP Counsels Regd Office No.40,3rd Main Road,JC Industrial Estate, Kanakapura Road,Bangalore – 560 062. Email: contact@bananaip.com Telephone: +91-80-26860414 /24/34

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2. CERTIFICATE COURSE ON ENTERTAINMENT LAW
VARIOUS ISSUES AND MECHANISMS FOR
SETTLEMENT OF DISPUTES IN THE
ENTERTAINMENT INDUSTRY

3. ISSUES/ DISPUTE

4. DISPUTES
• SCRIPTS
• MUSIC
• TRADEMARKS
• SCENES
• OTHERS…..
Confidential

5. • FAIR USE/ FAIR DEALING
• COPYRIGHT INFRINGEMENT
Confidential

6. FAIR DEALING
• SECTION 52 COPYRIGHT ACT
• General statutory exceptions
-Private study, research,
criticism and review, reporting
current events
Confidential

7. CONCEPT OF FAIR USE
• ORIGINATED IN THE UNITED STATES
• FAIR DEALING AND FAIR USE - The difference is
however not limited to the nomenclature alone.
While US follows a broad based, case by case
analysis of defined parameters approach, UK and
India follow a system of non-exhaustive, yet a
comprehensive listing of instances of fair dealing
in their copyright statutes.
• Courts in India have over the years not limited
themselves to fair use assessment based only on
the codified instances of fair dealing.
Confidential

8. FAIR USE DEFENCE
• PURPOSE AND CHARACTER OF USE
• NATURE OF THE WORK
• AMOUNT OF SUBSTANITALITY OF THE
PORTION USED
• EFFECT OF THE USE UPON THE POTENTIAL
MARKET
Confidential

9. TESTS - COPYRIGHT INFRINGEMENT
• “Abstraction-filtration-comparison” test.
• First, at the abstraction step, the ideas (which are not
protected by copyright) are separated from the
expression of the idea (which is subject to copyright
protection). Second, unprotectable elements (such as
material that is in the public domain or otherwise
unoriginal, or subject to the doctrines of merger and
scenes à faire) are filtered out. Finally, the remaining
protected elements in the original work are compared
to the allegedly infringing work to determine if the two
works are substantially similar.
Confidential

10. TESTS - COPYRIGHT INFRINGEMENT
• ACCESS
• SUBSTANTIAL SIMILARITY
QUANTITATE AND QUALITATIVE
EXTRENSIC AND INTRENSIC
• COGENT AND COHERENT EVIDENCE
Confidential

11. QUANTITATE AND QUALITATIVE
• The quantitative component addresses the
amount of the copyrighted work that is
copied, while the qualitative component
addresses the copying of protected
expression, as opposed to unprotected ideas
or facts.
• The quantitative analysis of two works must
always occur in the shadow of their
qualitative nature.
Confidential

12. EXTRENSIC AND INTRENSIC
• KROFFT TEST
• Application of the extrinsic test to analyze
whether a movie is substantially similar to a
script requires a court to compare the plot,
theme, dialogue, mood, setting, pace, sequence
of events, and characters of the two works
• The intrinsic test is subjective and is based on
the response of the ordinary reasonable
audience to the look and feel of the two works.
Confidential

13. R.G Anand vs M/S. Delux Films & Ors
1978 AIR 1613
• On a careful consideration and elucidation of the various authorities and the case
law on the subject discussed above, the following propositions emerge:
• There can be no copyright in an idea, subject matter, themes, plots or historical
or legendary facts and violation of the copyright in such cases is confined to the
form, manner and arrangement and expression of the idea by the author of the
copyright work.
• Where the same idea is being developed in a different manner, it is manifest
that the source being common, similarities are bound to occur. In such a case the
courts should determine whether or not the similarities are on fundamental or
substantial aspects of the mode of expression adopted in the copyrighted work.
If the defendants work is nothing but a literal imitation of the copyrighted work
with some variations here and there it would amount to violation of the
copyright. In other words, in order to be actionable the copy must be a
substantial and material one which at once leads to the conclusion that the
defendant is guilty of an act of piracy.
Confidential

14. R.G Anand vs M/S. Delux Films & Ors
1978 AIR 1613
• On a careful consideration and elucidation of
the various authorities and the case law on the
subject discussed above, the following
propositions emerge:
• There can be no copyright in an idea, subject
matter, themes, plots or historical or legendary
facts and violation of the copyright in such cases
is confined to the form, manner and
arrangement and expression of the idea by the
author of the copyright work.
Confidential

15. R.G Anand vs M/S. Delux Films & Ors
1978 AIR 1613
• Where the same idea is being developed in a different
manner, it is manifest that the source being common,
similarities are bound to occur. In such a case the
courts should determine whether or not the
similarities are on fundamental or substantial aspects
of the mode of expression adopted in the copyrighted
work. If the defendants work is nothing but a literal
imitation of the copyrighted work with some
variations here and there it would amount to
violation of the copyright. In other words, in order to
be actionable the copy must be a substantial and
material one which at once leads to the conclusion
that the defendant is guilty of an act of piracy.
March 2014 Confidential 15

16. R.G Anand vs M/S. Delux Films & Ors
1978 AIR 1613
• One of the surest and the safest test to determine
whether or not there has been a violation of
copyright is to seeing the reader, spectator or the
viewer after having read or seen both the works is
clearly of the opinion and gets an unmistakable
impression that the subsequent work appears to be a
copy of the original.
• Where the theme is the same but is presented and
treated differently so that the subsequent work
becomes a completely new work, no question of
violation of copyright arises.
March 2014 Confidential 16

17. R.G Anand vs M/S. Delux Films & Ors
1978 AIR 1613
• Where however apart from the similarities
appearing in the two works there are also
material and broad dissimilarities which
negative the intention to copy the original and
the coincidences appearing in the two works are
clearly incidental no infringement of the
copyright comes into existence.
• As a violation of copyright amounts to an act of
piracy it must be proved by clear and cogent
evidence after applying the various tests laid
down by the case law discussed above.
Confidential

18. COPYRIGHT/ MORAL RIGHTS
VIOLATION??
Confidential

19. MORAL RIGHTS VIOLATION
Confidential
“It shall be obligatory on the
part of the Producer to accord
credit to the author in the
rolling credits of any audio-
visual moving image software
(of any format or form in any
media or medium) produced
by the Producer in terms of the
exercise and execution of the
Rights granted as under:
“Based on The Novel
Five Point Someone
By
Chetan Bhagat”

20. REMEDIES
• CHAPTER XII – CIVIL REMEDIES
• Ex-parte injunctions (injunctions that are granted
even without hearing the other party)
• John Doe Orders (Issued against anonymous
offenders; E.g Mirabhai Films got a John Doe Order
against all cable operators before the release of
Monsoon Wedding)
• Anton Piller Orders ( Search and seizure orders)
including breaking down doors of shops which are
closed
• CHAPER XIII - OFFENCES
March 2014 Confidential 20

21. PIRACY
• JOHN DOE ORDERS
Confidential

22. MECHANISMS
• MEDIATION
• COURTS
• ARBITRATION
• FILM WRITERS ASSOCIATION
• PRODUCERS GUILD
Confidential

23. READING MATERIAL
• WWW.SINAPSEBLOG.COM
Confidential

24. Thank You
Contact Us:
Sharada Kalamadi
Associate Partner - BananaIP Counsels
Email: sharada@bananaip.com