Conferring 'Moral Rights' on Actors: Copyright Act and Manisha Koirala Case

Author(s): Vinay Ganesh Sitapati

Source: Economic and Political Weekly, Vol. 38, No. 14 (Apr. 5-11, 2003), pp. 1359-1361
Published by: Economic and Political Weekly
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Some amongthese Indian commentators, mythology - and that also coming from
evident from a few samples of commentaries by editors and columnists, and who are known to have a crush on the US someone who claims to be an expert in
analytical articles by defence experts, that proponents of neo-liberalisation, pretend international politics!
But while we at the moment can afford
appearedin the New Delhi-based English to be neutral on the Iraq issue and take on
a cynical posture. A typical example is a to laugh at Bush's speeches, or at editors
newspapers during the war.
Even before the US troops marched into column called 'Swaminomics', authored who combine scant knowledge with exIraq, the editor of a leading Indian news- by a well known journalist, carriedby the cessive gullibility, the American people
paper sought to jump the queue of Times of India on March 23. According to are being reduced by their president to a
Washington's sycophants, by outlining a him, "victorychanges everything".In other besieged nation, to remain perpetually
programmeas to how the Vajpayee govern- words, if the US wins the war - which it doomed under the threat of terrorist
ment should behave towards the US. He hopes to - all the present uproar by the attacks. Even if Saddam is 'decapitated'
echoed Bush by approvingly pointing out peace-nicks will evaporate, and people (the term used by Bush), he may have
the "increasing irrelevance of the UN". will come to accept the reality. It may the last laugh, leaving behind a legacy of
Following this, he advised New Delhi not happen. I have no dispute with him on that. vengeance against the US, which may
to be "pushedby entirely ignorantand non- But what surprised me was that while not remain confined only to his Arab comserious politicians, and a public opinion labouring his point, he came out with an patriots, but spread far and wide - from
determined by touching emotion rather astounding piece of information. Accord- the poor people of the third world who are
thancold reason"(a reference to the world- ing to him, after the US signed a peace victims of Washington's global economic
wide anti-wardemonstrations?).He there- agreement with North Vietnam, the latter policies on the one hand, to the governfore warned our government against com- "violated the peace agreement, invaded ments of the developed nations who feel
mitting itself "to a process of strengthen- and took over South Vietnam". Quite a threatened by Washington's political
ing the UN" as that would introduce "new striking tribute to the strength of a false hegemony over them on the other. [1
stresses on our relations with the US",
particularly now when "our clever new
positioning, as a friend of Washington, has
come very handy."(ShekharGupta,Indian
Express, March 15, 2003). A week later,
the same editor,afterhemmingand hawing
throughtwo-thirds of his column and scoffing atcalls for boycottingAmericangoods,
finally let the cat out of the bag - "...the
larger point is not whether Bush is right or
wrong,buthow well we serve ourselves...."
In his view, we should not confuse "emoTheManisha Koirala case has served to highlight the
tional and moral outrage with global realities and national interest," and should absence of protection tofilm actors in the Indian CopyrightAct.
instead "mould our responses to these Indianfilm stars have a global fan-following which translates
realities." (Indian Express, March 22).
into considerable commercialvalue. It is importantthat their
This is the typical ethos of the new breed on-screen
image be protected. Such legal protection can be
of editors and commentators in the naafforded
by
conferring 'moral rights' - the right to be
tional media. They are all too keen to
'mould their responses' to the US-led neo- acknowledgedas the creator of a work and the right to prevent
liberal global orderby adheringto the 'me- distortion/mutilationof one's work.
first-devil-take-the-hindmost' principle,
and extend it to their interpretation of VINAY GANESH SITAPATI
'Ek Chhoti Si Love Story' in which she
national and international politics. Conwas the heroine. Koirala's contention was
heManishaKoiralacase (Manisha that the unauthorised use by the director
cepts like 'right' or 'wrong', or feelings
like 'moral outrage' are now passe! AntiKoirala vs Shashilal Nair, 2003 (I) of a body double resembling her to play
war demonstrations are trivialised in
AIIMR 426), so full of juristic pos- sexually explicit scenes violated her legal
their columns as antiquated oddities
sibilities, ended with a whimper rather rights. Such unauthorised use presents a
indulged in by a bunch of eccentrics. They than the expected bang. Though the pub- Gordian knot requiring judicial, and legdismiss ideological beliefs (in human- licity for the case was connected to its islative untangling. The court agreed that
itarian values) or ethical norms (like sensation value (which contributed in no there existed a prima facie case of defahonesty or non-violence) in favour of small measure to the film's subsequent mation and granted a temporary inwhatever opportunities (irrespective of box office success), the case itself was junction pending the hearing of the suit. 1
their moral implications) that come their emblematic of a serious lacunain the Indian The court was to hear the substantive
way. So, Shekhar Gupta does not care Copyright law that needs to be addressed. arguments on both sides. But by resorting
two hoots for the Iraqi victims of US Manisha Koirala, a well known actress to extra judicial adjudication, Koirala
bombing, as long as the Indian government fromtheBombay film industry,approached provoked the court into declining to
can figure out a "strategy to profit from the Bombay High Court praying for an pronounce on the matter. The suit was
this" (March 15).
injunction against the release of the film dismissed.

Conferring 'Moral
on Actors

Rights'

CopyrightAct andManishaKoiralaCase

Economic and Political Weekly

April 5, 2003

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1359

It was a lost opportunity because an

examination of the protection that Indian
law accords to actors in films remained
unexplored. Koirala had very few legal
remedies available under existing Indian
law to combat the blatantlyinequitable and
unjust use of a body double. Indian law
does not protect the commercial image of
an actor or her creative input. Koirala was
not prevent all forms of distortion to an
on-screen character.Keeping in mind this
background, this article argues that the
Indian Copyright Act, 1957 [henceforth
Copyright Act] be amended to confer
'moral rights' on actors in films.
An actor's onscreen image is protected
both in the UK as well as the US. The UK
already has statutory provisions akin to
those being sought in this article. The UK
therefore accords 'moral rights' to actors.
Whilst the US does not have similar statutory provisions, the judiciary has evolved
the equitable remedy of 'right to publicity'
that protects the image of an actor. India
has neither. According 'moral rights' to
actors will fill this lacuna. Post-WTO, a
number of intellectual property right
[henceforth IPR] issues including patents
have been reviewed. Such review seeks to
ensure uniformity amongst IPR laws in
global markets to better protect the commercial value of the intellectual property.
In a bid to be compliant a committee has
been appointed by India to recommend
changes to the Copyright Act. This article
urgesthatthis opportunitybe used to amend
the Copyright Act by conferring 'moral
rights' on actors. Such a need to amend
copyright law is being articulated not only
in India, but also in several global fora.2

rights in a film can be sold by the producer). The Copyright Act also provides
forcertain 'performers'rights' (S38). These
rights are also economic rights, but they
pertain to performers whereas copyright
pertains only to 'works'.
A unique feature of copyrights worldwide is the provision for 'moral rights',
which are inalienable and always remain
with the creatorof the work, legally known
as the 'author'. 'Moral rights' are broadly
divided into the right to integrity and the
right to paternity.3 The right to integrity
is the right to prevent mutilation/distortion
of an author's work and the right to paternity is the right to be acknowledged as
the authorof the work. These rights cannot
be transferred.Forexample, the artistAmar
Nath Sehgal could prevent mutilation of
his painting even after selling the same to
the government. (Amar Nath Sehgal vs
Union of India, MANU/DE/0327/2002).
'Moral rights' have been defined in the
Berne Convention to which India is a
signatory (Article 6bis of the Berne Convention for Protection of Literary and
Artistic Works (Paris Revision, 1971)). It
has accordingly been incorporated into
Indian law in the form of S57 of the
Copyright Act, which confers these rights
on authors.
As of today, the Copyright Act does not
confer any rights on actors in films. There
are only three conceivable ways in which
rights can be grantedby the Copyright Act.
(i) If acting in a film qualifies as a 'work'
(as defined in S2(y)) of the Copyright Act,
it would be entitled to a copyright (by
virtue of S13(1)). However, a division
bench of the Bombay High Court has held
in Fortune Films v Dev Anand that acting
in a cinematographfilm does not fall under
Copyright and 'Moral Rights'
any of the enumeratedtypes of 'works' and
A copyright is a largely negative right is therefore not entitled to a separate
that, simply put, prevents the copying of copyright (AIR 1979 Bom 17).
the materialform of another's intellectual
(ii) An acor as a performer might be
expression. For example, whilst the idea entitled to certain rights S38 of the Copyportrayed in a film (boy meets girl; they right Act even grants certain 'performer's
get marriedamidst parentalopposition) is rights' to 'performers'. However actors in
an idea that is not protected, its expression cinematograph films cannot avail of the
in material form, namely, the film itself same unlike musicians, dancers and theis protected as a copyright. The Copyright atre actors. This is because S38(4) exAct is the sole residuary of all copyright pressly bars actors who have 'consented
provisions under Indian law. The Copy- to their performance' in films from being
rightAct grantscertainrights to all 'works' accorded any rights as performers.
under the relevant section (S2(y)). These
(iii) The Copyright Act confers special
rights are known as copyright and consist rights or 'moral rights' on 'authors' (S57).
largely of economic rights such as the right If an actor can be termed an 'author', he
to reproduce and to prevent unauthorised would be entitled to certain 'special rights'
reproductions (mentioned in S14). Such popularly known as 'moral rights'. Howrightscan be transferred(for example such ever, actors are not listed in the definition

1360

of 'authors' (defined in S2(d)). It is thus

clear that the framers of the act did not
confer 'authorship'on actors.Further,India
intends to be a signatory to the WIPO
Performances and Phonograms Treaty
(henceforth WPPT) as can be evidenced
from the committee set up by the government to change Indian laws in this regard.
However, the WPPT has expressly denied
'moral rights' to audio-visual performers
such as actors,4 partly due to India's insistence during negotiations, leading several commentators to opine that this was
due to the powerful producer's lobby in
both Hollywood as well as Bollywood
which seeks to deny actors any rights.5 It
is thus clear thateven today, the legislature
is against conferring 'authorshiprights' to
actors.
Thus actors can neither avail of copyright, nor author's special rights (moral
rights), nor indeed performer's rights. It
is thus amply clear thatactors are conferred
no rights by virtue of the Copyright Act,
and that the position of Indian law in this
regard is unambiguously explicit.
Conferring an entire 'copyright' or
'performer's rights' to actors is impractical. The copyright in the film vests in the
producer. 'Copyright' and 'performers
rights' being essentially economic, according these rights to actors would create an
overlapping of rights and a conceptual as
well as practical aberration. However
conferring 'moral rights' to actors would
merely give them basic rights (the right of
paternity and integrity) and would not in
any way inhibit the economic rights vested
in the producer.

Need to Accord Actors with

'Moral Rights'
As stated above, actors are not accorded
any rights under the Copyright Act. But
such a position clearly conflicts with the

Centre for Culture and

Vadodara,
Development,
invites applications from
researcherswith Ph.D in social
sciences
as
research
associates, on tenure basis.
Applications should reach the
director, CCD, XTI campus,
SevasiPost,Vadodara391 101,
latest by April end.

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April 5, 2003

foundingrationale,or to use ajurisprudential expression, the grund norm behind

copyright law - namely, protection of
creativity.6 In addition, with enormous
commercialvalue being attachedto actors,
and such value being a creation of the
actor's on-screen image, the principle of
equity demands especially in the absence
of other protective laws,7 the conferring
of copyright to actors.
There are two broad reasons why actors
must be accorded 'moral rights'. The first
is embedded in the very rationale behind
copyrightitself: to protect the creativity of
individuals and to provide economic incentive for further such creativity.8 It is
obvious that actors are creators - never
mind what passes for 'acting' in most
mainstream Bollywood films - who creatively contribute to the development of
their characters. It is only reasonable to
expect that as creative components within
a film, they must be accorded separate
rights. In fact, S 13(4) of the Copyright Act
recognises such a possibility by envisaging an independent copyrightable existence in "anywork in respect of which...the
film...is made". The Supreme Court has
reiterated this conceptual possibility in
IndianPerformingRights Society vs Eastern India Motion Pictures Association.
(AIR 1977 SC 1443). But while accepting
that a copyright can be vested in creative
components of films. The Copyright Act
curiously denies actors such rights. English common law on the other hand
expressly grants copyright to acting in
cinematographfilms. In the celebrated case
of Norowzian vs Arks (1998 FSR 394) the
English courts recognised that acting in an
advertisementfilm is a dramatic work that
is capableof an independentcopyrightable
existence.
The second reason for according copyright to actors is one of need. It would be
stating the obvious to point out that the
legislature and in its absence the judiciary
mustevolve law to deal with contemporary
issues in society. For example, in accommodatingthe need to confer authorship on
computerprogrammers(an unknown species when the US Copyright Act was
framed)the US courtsin Apple Computers
vs FranklinComputerCorp (714 F 2d 1240
(3d/Circ 1983) reinterpretedthe definition
of 'literary work' and read the literal
computercode into the definition. In doing
so, copyright was conferred on computer
programmers.
Today, actorsearncolossal amountsfrom
appearances in films. Such commercial

Economic and Political Weekly

value to their image is as coloured by their

on-screen depictions (the perpetually heroic MGR being a case in point) as it is
by their off-screen exploits. The principle
of equity demand, that such a commercially viable on-screen image be protected.
Conferring 'moral rights' on actors will
ensure that there is no 'distortion mutilation, modification' to theiron-screen image
which is prejudicial to the actors' 'honour
or reputation' (S57(b)).
Further, no other law in India accords
protection to the image of an actor. The
'right to publicity' is not a copyright, but
a US case law evolved equitable remedy.
Evolved as an extension of the right to
privacy in Haelan Lab, Inc vs Topps
Chewing Gum, Inc, 202F.2d 866 at 868,
(2d Cir), cert denied, 346 US816 (1953)
the right also protects the 'unauthorised
commercial use of a public figure's image.9 Had the Manisha Koirala case arisen
in America, undoubtedly she would have
made use of the right to publicity doctrine
and the case would have been decided in
her favour. Unfortunately, the right to
publicity has not been recognised in common law, nor indeed in Indian law. The
R R Gopal case (MANU/SC/0056/1995)
and the Phoolan Devi case (MANU/DE/
0486/1994) both of which extensively deal
with the right to privacy do not even in
passing extend it to a public figure's
image. It is of course possible for Indian
courts to recognise the right to publicity
and thus accord actors with rights. But
such a case law evolved remedy is a
substantial change in law and should not
be introduced by the judiciary, without
enactment. Further,apartfrom possessing
a commercially viable image, an actor is
a creator. As a creator, s/he is entitled to
copyright.
Had such a provision existed in Indian
law, it would have given Manisha Koirala
clear protection. Due to the lack of other
remedies, Manisha Koirala was forced to
argue that she had been defamed by the
use of a body double in certain objectionable scenes. Defamation requires injury to
one's 'personal reputation'. But Manisha
Koirala was far more worried at the possible injuryto her 'public image', an image
that is hitherto unprotected in Indian law.
It is unfortunate that irked by her resort
to extrajudicialauthorityin the form of Bal
Thackeray and the I and B ministry, the
court refused to grant an injunction and
misses an opportunity to point out the
inadequate protection Indian law accords
to an actor's image.

Trends in international opinion favour

the conferring of 'moral rights' on actors.
Apart from the explicit common law recognition of the same, the WPPT treaty and
associated conventions arefora where such
a need has been articulated on several
occasions. It is unfortunatethat the WPPT
has not conferred 'moral rights' on actors.
It is indeed even more unfortunate that
opposition from India in tandem with the
US are the principal reasons for this situation. In an age where an 'image' is worth
crores and creativity is protected through
a plethora of laws; deserving creators like
actors must be protected. It is thus urged
that S57 of the Copyright Act be amended
and actors be conferred 'moral rights'. It
is believed that the government is indeed
contemplating such a proposal. If this
actually happens, film stars and their fans
have reason to cheer. [C

Notes
[This articleis adaptedfrom the topic for the 2003
D M Harish All India Moot Court Competition
held under the auspices of Government Law
College, Mumbai Part of the research has been
done by the NLSIU teamfor the same, and is duly
acknowledged. The writer was a member of the
award winning NLSIU team.]
1 A temporaryinjunction is granted whilst the
suit is being heard.It is however, subjectto the
final decision of the court.
2 During the negotiations for the WIPO
Performancesand PhonogramsTreaty, such a
need was articulated but was withdrawn
following muchprotest.See also AdlerBernard,
"theProposedNew WIPOTreatyfor Increased
Protection for Audiovisual Performers: Its
Provisions and Its Domestic and International
Implications",12 FordhamlIltell Prop Media
and Ent L J, 1089 (2002).
3 The English CopyrightAct has expanded the
scope of moral rights to include for example
the right against false attributionof creation.
But IndianLaw does not recognise such rights.
4 www.wipo.org/pressroom/en/releases/2002/p
302.htm.
5 Fiona Macmillan 'The Cruel C: Copyrightand
Film', 2002 Eur 1 P R. p 21.
6 Laddie,PrescottandVictoria,TheModernLaw
of Copyright and Designs 671 (2000).
7 The right to publicity, so well evolved in US
law, is unrecognisedin Indianlaw. The law of
defamationprotectsonly 'personalreputation'.
As such, no law in India protects the public
image of actors.
8 Laddie, Prescott and Victoria, op cit.
9 Vanna White v Samsung, 971 F 2d 1395, at
1398-99 (1992); Zachini vs Scripps-Howard
BroadcastingCo, 433 US 562, at 569 (1977).
See also Kirsten Anker, 'Possessing Star
Qualities: Celebrity Identity as Property', 11
Griffith LR 147 (2002).

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1361