Works Made for Hire and Film Production – Part I: Notes on Copyright Amendment, 2012

This post was first published on 24th June, 2014.

‘Made for hire’ works are of two types:

a. Works created under a contract of employment or apprenticeship (Contract of Service); and b. Specially commissioned works (Contract for Service).

Copyright Law, with respect to works made for hire is codified under Section 17 of the Indian Copyright Act. Clauses (b) and (c) of the section are specifically relevant to this article. They read as follows:

“17. First owner of copyright…

(b) subject to the provisions of clause (a), in the case of a photograph taken, or a painting or portrait drawn, or an engraving or a cinematograph film made, for valuable consideration at the instance of any person, such person shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein;

(c) in the case of a work made in the course of the author s employment under a contract of service or apprenticeship, to which clause (a) or clause (b) does not apply, the employer shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein; … “

Though a bare reading of the language does not lead one to the conclusion, said provisions state that a work commissioned by a film producer for valuable consideration, or created for a film producer under an employment relationship, would be owned by the producer. In other words, he/she would be the first owner of the works made for hire.

In 1977, the Supreme Court of India clarified that the producer would be the first owner of a work made for hire under Section 17. A specific paragraph in the case is reproduced hereunder:

“18. This takes us to the core of the question, whether the producer of a cinematograph film can defeat the right of the composer of music or lyricist by engaging him. The key to the solution of this question lies in provisos (b) and (c) to Section 17 of the Act reproduced above which put the matter beyond doubt. According to the first of these provisos viz. proviso (b) when a cinematograph film producer commissions a composer of music or a lyricist for reward or valuable consideration for the purpose of making his cinematograph film, or composing music or lyric therefore i.e. the sounds for incorporation or absorption in the soundtrack associated with the film, which as already indicated, are included in a cinematograph film, he becomes the first owner of the copyright therein and no copyright subsists in the composer of the lyrics or music so composed unless there is a contract to the contrary between the composer of the lyrics or music on the one hand and the producer of the cinematograph film on the other. The same result follows according to aforesaid proviso (c) if the composer of music or lyric is employed under a contract of service or apprenticeship to compose the work. It is, therefore, crystal clear that the rights of a music composer or lyricist can be defeated by the producer of a cinematograph film in the manner laid down in provisos (b) and (c) of Section 17 of the Act. We are fortified in this view by the decision in Wallerstein v. Herbert. (1867) 16 L.T. 453 relied upon by Mr. Sachin Chaudhary where it was held that the music ‘composed for reward by the plaintiff in pursuance of his engagement to give effect to certain situations in the drama entitled “Lady Andley’s Secret”, which was to be put on the stage was not an independent composition but was merely an accessory to and a part and parcel of the drama and the plaintiff did not have any right in the music.”

[Indian Performing Right Society Ltd. Vs. Eastern Indian Motion Pictures Association and Ors. AIR1977SC1443.]

Under the section, works made by lyricists and music composers for hire were first owned by the producers unless there was a contract to the contrary. Seeking to change this situation, the 2012 amendment introduced a proviso to Section 17, which reads as follows:

“Provided that in case of any work incorporated in a cinematograph work, nothing contained in clauses (b) and (c) shall affect the right of the author in the work referred to in clause (a) of sub-section (1) of section 13.”

This proviso seems to be aimed at taking away the right of producers to sign work for hire arrangements with authors in an attempt to ensure that they receive their due consideration/compensation. But, by virtue of its vague phraseology, this proviso springs several interpretations, and is ambiguous to say the least. For example, scholars and attorneys are confused about what it exactly means:

Does it mean that authors cannot sign works made for hire contracts, or does that merely mean that these arrangements are valid as long as the rights of the author under Section 13 are not affected?; Section 13 merely mentions works in which copyrights subsist, what does it mention in the proviso exactly?; What right of authors is being referred here, is it the right to collect royalty, or is it copyright?; What happens in case of a work for hire, where the work is incorporated in a cinematographic work much later? Will the rights revert?; and What exactly is the scope of this proviso? What does it prohibit, and what does it not prohibit?

Not surprisingly, the constitutional validity of this proviso has been challenged before the Delhi High Court by several parties, and a decision is awaited. Considering the language, one cannot help but wonder what this proviso was actually meant to achieve.


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