By: Sri Madhura Srinivasa
INTRODUCTION
Actor Nayanthara and her director husband, Vignesh Sivan, had been granted until 8 January 2025 to respond to a copyright infringement suit filed by Producer Dhanush K. Raja’s Wunderbar Films Private Limited. The dispute revolves around the use of a 3-second Naanum Rowdy Dhaan movie behind-the-scenes footage in Nayanthara’s docu-drama, Nayanthara: Beyond the Fairytale.
Amid the strained relationship and ongoing drama between the two parties, the core issue of this dispute boils down to a pivotal question: Who holds the copyright to behind-the-scenes footage, the producer or the individual who captures it?
This essay critically examines the ongoing copyright dispute between Nayanthara and Dhanush, exploring key legal precedents and principles related to producer’s rights, fair use, and de minimis. At the intersection of copyright law and film production, the essay discusses the factors that should be considered in determining the true ownership of behind-the-scenes content.
LEGAL FRAMEWORK: PRODUCER’S RIGHTS AND THE OWNERSHIP OF WORKS
According to Section 2(d) of The Copyright Act, 1957, the author of a cinematographic work is the producer. Naturally, the person who captures the footage is generally considered the owner of the work. However, Section 17 of the Act provides exceptions, stating that if a work is created at the request of another party, the person who requested it becomes the owner.
The primary question is whether the producer, by default, owns all movie-related content, including behind-the-scenes footage, particularly when filmed on a personal device. This can be examined in two parts: (i) when the scene is filmed using production equipment, and (ii) when filmed on a personal device.
In Ramesh Sippy v Shaan Ranjeet Uttamsingh & Ors. (2013) and S.J. Suryah (a.k.a. S. Justin Selvaraj) v. S.S. Chakravarthy & Ors.(2021), it was reasoned that the producer was designated as the owner primarily due to their financial contribution towards the creation of the film. Therefore, there is both logical and legal support for the producer’s ownership of the film and any content created using production equipment. However, the situation should be viewed differently if the person who filmed the footage can prove it was created independently, separate from the film’s production. In proving the same, an important facet to be analysed is the content of the footage and whether it consists of actual scenes from the film, the set, or mere informal conversations. In that context, the burden would be on the producer to prove that the footage was taken during the course of employment.
Another important factor to consider when determining ownership is the contractual relationship between the parties. If the contract clearly establishes in advance that the producer would have rights to the behind-the-scenes footage, the situation would be entirely different, and the footage would automatically become the producer’s copyright.
APPLICABILITY OF FAIR USE AND DE MINIMIS IN THE CONTEXT OF BEHIND-THE-SCENES FOOTAGE
A copyright principle commonly used as a defence in infringement cases is the fair use principle under Section 52 of the Copyright Act. Fair use refers to the legal doctrine that allows limited use of copyrighted material without the copyright owner’s permission, for personal use, research, criticism, parody, review, and reporting current events. Relevant aspects to consider while determining fair use, as held in Civic Chandran v. Ammini Amma, include the purpose, the impact on competition with the original work, and the amount of work used.
In the present case, it is relevant to note that the three-second clip was used in a Netflix documentary for a commercial purpose. While this factor does not automatically rule out the application of the fair use principle, it can certainly be used by the producer to challenge its applicability. However, it has been established in the American jurisprudence through Campbell v. Acuff-Rose Music Inc. that commercial use does not automatically negate the doctrine of fair use.
In India, scholars argue that Section 52(1)(a) of The Copyright Act, 1957 is not equivalent to the fair use provision under Section 107 of the US Copyright Act, 1976, and applies only to the specific activities enumerated in the definition of fair dealing mentioned above. While the statute is restrictive in its language, the Indian judiciary has extended Section 52 to consider whether the work qualifies as transformative.
In University of Oxford v Narendera Publishing House and Ors., the Delhi High Court held that the transformative nature of a work is assessed by examining whether its purpose significantly differs from that of the prior work, requiring the new work to serve a distinct purpose. Additionally, the subsequent work must fundamentally differ in character rather than merely making superficial changes that retain the original’s essence. A mere substitute cannot be considered transformative, which directly connects to the second aspect of fair use: its impact on competition.
In R.G. Anand v. Deluxe Films, the Supreme Court established that as long as the work was transformative and did not serve as a substitute for the original work, the fair use defence can be applied. Further, in Kartar Singh Giani v. Lodha Singh, the Court held that the following two aspects should be considered while deciding whether the use of a copyrighted work is fair: the intention to compete and derive profit, and the infringer’s unfair motive.
In the present case, it must be established that the documentary does not compete with the original work for it to fall within the ambit of fair use. Nayanthara’s documentary can be considered transformative because it integrates her journey through her film career, personal struggles, and marriage into a narrative that offers new insights into her life, going beyond the original context of an individual clip. The combination of these aspects, along with the three-second clip, if deemed transformative by the court, may qualify under the fair use principle.
Lastly, delving into the amount of work brings up the question of whether the de minimis principle applies. The amount does not refer solely to the quantified portion but also considers the substantive value of the amount copied. For example, if the copied portion is small but consists of the heart of the original work, fair use may not apply. The Latin phrase de minimis refers to bare necessities. The principle of de minimis suggests that a minor or insignificant use of copyrighted material is unlikely to cause substantial harm to the copyright holder.
In India TV Independent News Service Pvt. Ltd. & Ors. v. Yashraj Films Pvt. Ltd., the Court held that five factors are to be considered, including the extent and nature of the harm caused, the expenses associated with adjudicating the case, the purpose behind the breached legal obligation, the impact on the rights of third parties, and the intent behind the wrongdoer’s action. A decade later, in Shemaroo Entertainment Limited v. News Nation Network Private Limited, the court ruled that both the duration of the exploitation and the qualitative aspect are important in determining the applicability of the de minimis principle.
In the present case, the use of the three-second clip can fall under the ambit of the de minimis principle if it can be established that the clip was fleeting and insubstantial. From consideration of the aforementioned factors, if it can be proven that the use of the three-second clip in the two-minute and twenty-six-second trailer was transformative, does not compete with the original and falls under the de-minimis principle, fair use can be applied as a valid defence under Section 52 of the Act.
CONCLUSION
The issue of copyright ownership in film production, particularly concerning behind-the-scenes footage, remains intricate and nuanced, demanding a careful assessment of various factors. Indian copyright law generally designates producers as default copyright holders; However, determining ownership of behind-the-scenes content, particularly when filmed on personal devices, requires careful analysis in light of fair use laws and de minimis principle. Ultimately, the resolution lies in balancing the producer’s rights with the need to safeguard creativity and fair use. As the Madras High Court navigates these intricate legal frameworks, the outcome of this case could set a pivotal precedent, shaping the future of copyright ownership in the Indian film industry.
(Sri Madhura Srinivasa is a law undergraduate at Symbiosis Law School, Pune. The author may be contacted via mail at 21010125420@symlaw.ac.in)
Cite as: Sri Madhura Srinivasa, Behind the Lens of Drama: Who Truly Owns the Behind-the-Scenes Gold in Light of Dhanush v. Nayanthara – The Producer or the Camera Artist?, 15th January 2025 <https://rmlnlulawreview.com/2025/01/15/behind-the-lens-of-drama-who-truly-owns-the-behind-the-scenes-gold-in-light-of-dhanush-v-nayanthara-the-producer-or-the-camera-artist/> date of access.