Legal training for filmmakers & creators

Sneak Peek into few queries that my lawyer mind asks my creative heart!

Sneak Peek into few queries that my lawyer mind asks my creative heart!

By Diwakar Abhishek

So you have decided to be a screenwriter or a film maker! All set to create, you are sure that you want to keep your story completely original. Besides, you do not want to be sued by anyone for copyright infringement, defamation, and what not! People have become (as it is within their rights) sensitive, when it comes to their privacy, reputation, their brand names, etc. as well as the lawyers need to keep their stoves burning!

Unless a writer intends to create a completely fictional world – like Mid-Earth created by JRR Tolkien, the Magical World created by JK Rowling, or Westeros created by GRR Martin – the characters and settings have to be within real cities or nations and characters from among real people. Sometimes, it becomes difficult to ascertain facts from fiction – a writer decided to take a real incident and build fiction around it. On the other hand, the writer created a complete fiction but made his characters live real-life around his readers.

Creatively, everything is allowed, but then, my lawyer mind kicks me – dude – there is something wrong that you are doing! Whenever someone is writing, a few questions about copyright and intellectual properties that keep on cropping up. In this article, I have mentioned those that keep coming to my mind when writing – and I hope, this article will help my fellow filmmakers and the writers avoid such mistakes, and thus save few bucks!

Names – Events – Geographical Area – News

A name, however uncommon, and even if belonging to a real person who is a celebrity (check the next part for cautions though) – is NOT protected by copyright. Similarly, real events featured in the news or not, geographical areas like city names, and so on, cannot be protected by copyright laws. As a writer, one may feel free to use them creatively in their writing.

As a caution – if you are quoting a piece of news article verbatim, or showing a newspaper with an exact story, or a news piece playing in the background – that IS copyrighted. Do ensure to seek appropriate permissions. A workaround is – to change the name of the newspaper, rephrase the news-piece; you are the creative person – use your imaginations for the ways out!

Brand Names – Logos – Real Persons

Brand names and logos may be trademarks, and if they are prominently placed in your cinematographic films, you may require appropriate permissions (e.g. Facebook, Instagram, Apple or Nokia ringtones, building names showing the name of the owner/builder/company, etc.) We have been seeing several such usages like “Friendbook,” “Cmail” and so on – just to avoid such claims. Recently, I observed Bandish Bandits, which ensure to cover the logo of apple by using the fictitious logos!

Names of Real Persons, especially celebrities, although not copyrighted, may not be used without appropriate permissions; reason – defamation claims! I remember, in “Sarabhai vs Sarabhai” they used a name – Sunil Amlani – the owner of Alliance Industries, in one of the passing references! We all know who it refers to, without any risk, right! However, creative liberty in using stories of the lives (fictional accounts) may be utilized, ensuring against claims of defamation. Seeking permissions help – but may dent a hole in the production budget!

Pop Culture references

They often are intertwined so much in the common language that it becomes difficult to differentiate between copyrighted and free content (e.g. references to “Gabbar”, or characters of “Sholay”, or mention of movie “Black” repeatedly in the “Golmaal” franchise). Often, the owners feel honored to have such mentions and do not challenge such presence. However, it is prudent to seek permission and credit appropriately. Additionally, the writer and the producer need to ensure that such references do not amount to defamation – that is another legal risk apart from IPR infringement.

Songs – Dialogues – Story

Often one feels inclined to quote dialogues from classics. A scene may require to play some contemporary songs in the background, or a character is humming a song. One of the scenes may require the characters sitting in a theater and watching a movie. These references do require appropriate permissions and may involve royalty (of course! as case to case analysis is required). A spoof of a movie may be claimed as ‘Fair Usage’ but it all depends on the interpretation. Writers and Producers must be wary of such usage, and ensure that appropriate permissions are sought before filming, and such is credited to the original owners.

Inspired Cinema

This is indeed a wide ambit. There is no scope of inspiration, as per the copyright laws. Even if one is inspired (a little respected word for plagiarism – In words of Langda Tyaagi -“Inspiration aur plagiarism me dhage bhar ka farq hove hai!”), one needs to attribute the original creator, with appropriate permissions and royalty as agreed. The original content owner may choose not to initiate action, but one cannot leave their investments up to such chances (e.g. “Sarkar” by RGV was inspired by “The Godfather”, “Ek Haseena Thi” by Shriram Raghavan, was partially inspired by Sydney Sheldon’s “If Tomorrow Comes” etc.)

It is a rare feat that “Kaante” is honored by Quentin Tarantino whose Reservoir Dogs was copied and remade without permission by Sanjay Gupta, instead of being sued for infringement. Such a feat could not be repeated by Vivek Agnihotri in his “Chocolate” by adapting ‘The Usual Suspects’ by Bryan Singer, although again –never sued! We have seen a large number of movies which have been lifted directly from other languages. This list will go for several pages if I try to create one!

There was a time when Hollywood/foreign cinema could be bluntly copied, and there was no reason to worry. TODAY, Indian cinema stands at the global level, and there is a much higher risk of claims and actions against such plagiarism being initiated and may result in financial as well as reputation losses.

Disclaimer: Please note that the above are generalized observations and information. A case-to-case analysis is necessary for evaluating each issue. The above should not be considered as a Legal Advice in any circumstances. The view expressed is personal to the author.

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