- JUDGMENT SUMMARY: Fortune Film International v. Dev Anand
- DATE OF JUDGMENT: 14 March 1978
- BENCH: Kantawala, J. and Desai, J
SUBJECT:
The present case dealt with the question of performer’s rights long before the amendments of 1994. The Copyright Act did not provide any performer’s right until the 1994 amendment.
FACTS:
The appellants, Fortune Film International, the film producers entered into a contract with famous cine artist Dev Anand to engage him in their Hindi film “Darling Darling” and to pay him the amount of Rs 7 lakh as consideration. The agreement mentioned a provision for relaxation in favour of the appellants giving them a restricted right to exhibit the film in any of the listed territories after making the payment as stipulated for that territory. The film was released in three of the seven listed territories. The actor sought an injunction to restrain the producers from releasing the film in the other four listed territories along with the territories not listed on the ground that the said provision vested the copyright in the film in him and absolutely prohibited the producers from exhibiting the film anywhere until full payment was made to him. The court partially granted the injunction to refrain the producers from exhibiting the film in territories which were not listed but the actor’s claim that the agreement vested in him the copyright in the film as a whole. The court held that the agreement supposed to vest in him the copyright in his work, ie, his performance in the film.
The producers preferred an appeal before the Division Bench against the decision of the single judge.
IMPORTANT PROVISIONS:
- Section 2(c), Section 2(f), Section 2(h), Section 2(y) and Section 13 of the Copyright Act, 1957 (prior to 1994 amendments).
- Section 2(c)- definition of ‘literary work’
- Section 2(f)- definition of ‘cinematograph film’
- Section 2(h)- definition of ‘dramatic work’
- Section 2(y)- definition of ‘work’
- Section 13- the subject matter of copyright
ISSUES:
The main issue in question before the court was:
Whether copyright subsists in the work of the cine artist under the Copyright Act, 1957 or not?
ANALYSIS OF THE JUDGMENT:
Appellant's Contentions: It was contended on behalf of the appellants that such a right was not recognized or protected under the provisions of the Copyright Act. They argued that according to Sec 2(y) of the Act ‘work’ meant a work which is tangible in nature. There could be copyright in a motion picture or a cinematograph film as well as in the story, scenario or music, which were all tangible, but not the performance of the artist.
Therefore, the agreement could not vest in the actor something which in the first place did not exist under the Act.
Respondent's Contentions: The respondent argued that the performance of an actor was protected by the definition of ‘artistic work’ and ‘dramatic work’ under Section 2(c) and Section 2(h) of the Act respectively. He submitted that the performance of the cine artist involves acting which is in the fixed form in a cinematograph film and, therefore, iscovered within the definition of "dramatic work".
Court's observations:
The court held that the performance of an artist in a cinematograph film could not be equated with painting, sculpture, drawing, engraving or photograph and is clearly not artistic work as per Section 2(c) of the Act.
The court also rejected the contention that it was covered under Section 2(h) as ‘dramatic work’ and held that it was an inclusive definition which expressly excludes a cinematograph film. It was further held that the words “or otherwise” in the definition of dramatic work are there only to provide for the means of recording, such as a tape recorder, Dictaphone, etc.
The Court also rejected the argument that there could be one copyright owner in a cinematograph film as a whole and different owners of the copyright in portions thereof.
The court held that the plaintiff was not entitled to any interim injunction regarding the territories other than the four listed territories. The court set aside the decision of the trial court and also vacated the interim injunction granted by the trial court.
Conclusion:
Until the 1994 amendment, no performers right were available to the performer under the Copyright Act, 1957. The only reason why the performance of a performer was not protected under the copyright Act was that it was not a ‘work’ within the definition of Section 2(y) of the Act. However, post the amendments of 1994 performers rights also known as neighbouring rights are protected under Section 38, Section 38A and Section 38B of the Act.
