Will a 3-second clip cost actor Nayanthara Rs 10 crore?

Guest post by Aashi Saxena

Netflix’s recent documentary Nayanthara: Beyond the Fairy Tale, is about the life and struggles of the South Indian superstar Nayanthara.

It is now facing a legal battle over the use of a Behind the Scenes clip (BTS) from the sets of the 2015 film “Naanum Rowdy Dhaan”, produced by Dhanush under his Wunderbar Films.

Dhanush has filed a civil suit against Nayanthara and her husband, filmmaker Vignesh Sivan, over the  use of footage without prior permission. Dhanush is demanding Rs. 10 Crore in damages for using the three-second behind-the-scenes clip from the film.

In this Weekly, let’s look at the law on copyright infringement and what infringing copyright can cost.

What is a copyright?

Copyright is a form of intellectual property protection granted to the creators of original works such as literary works, dramatic, musical and artistic works, cinematographic films and sound recordings.

According to Section 14 of the Copyright Act, 1957, copyright refers to a bundle of exclusive rights granted to  the owner of the copyright. These rights can be exercised only by the owner or by any other person who is authorised by the owner. These rights include;

• the right to adaptation,
• right of reproduction, 
• right of publication, 
• right to make translations, communication to the public,
• right to make commercial use of the work etc.

Who is the owner of the copyright?

Copyright is a work which initially belongs to its author or creator (Section 17 of the Act). However, if an employee creates the work during their employment and within the scope of their job duties, their employer becomes the copyright owner.

What is the purpose of copyright?

The primary purpose of copyright is to prevent others from unauthorized copying or duplicating original works.It also protects the copyright holder’s right to use the original work according to their own wish. 

Is the use of copyrighted works allowed under any circumstances?

The Act lays down certain exceptions in case of which the use of copyrighted work will not count as an infringement.  These are : 

• Fair Use: The Indian Copyright Act, of 1957, includes provisions for fair use, allowing limited use of copyrighted material without permission for purposes such as criticism, review, news reporting, teaching, scholarship, or research.
• Public Domain: Works that are no longer protected by copyright due to the expiration of the copyright term or because they were never subject to copyright protection (e.g., works created by the Indian government) can be used freely without infringing on any rights.
• First Sale Doctrine: Under the First Sale Doctrine, once a copyright owner sells a copy of their work, they generally lose the right to control the resale or further distribution of that specific copy.
• Lack of Originality: To be protected by copyright in India, a work must be original. If a work is substantially similar to a preexisting work or lacks sufficient originality, it may not be eligible for copyright protection.
• Independent Creation: If an alleged infringer can prove that they created their work independently of the copyrighted work, this will not be considered an infringement.

What are the remedies available in case of copyright infringement?

Copyright infringement can be addressed through both civil and criminal remedies.

Civil Remedies:

• Injunctions: These are court orders that can prevent the infringer from continuing the infringement. They can be temporary or permanent.   
• Damages: Copyright owners can seek damages to compensate for the financial losses caused by the infringement. This can include actual damages, statutory damages, and/or profits made by the infringer.   
• Account of Profits: The copyright owner can seek an accounting of the profits made by the infringer through the infringement.   
• Delivery Up: The copyright owner can ask the court to order the infringer to deliver all infringing copies of the work.   

Criminal Remedies:

• Imprisonment: The Indian Copyright Act provides for imprisonment of up to three years for copyright infringement.   
• Fines: The Act also provides for fines of up to Rs.2 lakhs.

What will be the liability of Nayanthara and Vignesh Sivan?

If found guilty of copyright infringement by a court of law, the actress may be ordered to pay damages of Rs. 10 crores to the producer, as claimed in the lawsuit. The court may also issue an injunction, prohibiting her from further use of the disputed content, either permanently or temporarily.