COPYRIGHTS

Cover songs on YouTube: Where legality meets lyrical creativity (and copyright claims meet ear-bleeding renditions)

A cover version is the performance of a song that already exists, has been previously recorded, or has been commercially published by someone other than the original performer. This new recording is referred to as a cover version. The cover version has also been defined as a sound recording in relation to any abstract, sensational, or melodic work, when the sound recordings of that work have been recorded by or with the consent or agreement of the owner of the right in the work under Section 31 C of the Indian Copyright Act. With the advancement of new technology, it has become more easier for individuals to create and post cover versions online.

Before Section 31C, song covers were made under Section 52(1)(j) of the Copyright Act, which was a “fair dealing” provision that supplied the defendants with a defense that the cover version they made was fair and non-encroaching because it agreed to the pre-conditions set out in Section 52(1)(j). These recordings were known as “version recordings” throughout the business, and the term was used by the Delhi High Court in a few rulings in lawsuits. Aside from its casual use, the term “version recording” does not appear in the new Act. Section 31C has omitted and brought back as a Statutory License provision with certain amendments; thus preserving to a large extent.

Since the time of Bards this field has been profitable market, various producers for version recordings have emerged, as the statutorily recommended order under previous Section 52(1)(j) required them to send only notice and pay the agreed upon royalty to the writers of original works when a sound recording of the same original work was simply allowed to exist in open space. Which is why today you can enjoy ‘Sanam’ make a medley of your favorite 90’s songs.

The mechanical license on YouTube only covers the audio element of your YouTube cover. Synchronization license, sometimes known as a “sync” license, is required to publish video alongside the song. A sync license must be negotiated with the copyright holder. While copyright holders are required to grant mechanical licenses, they are not required to grant you a sync license, and there is no set fee for the license. The good news is that many music publishers have already entered into deals with YouTube that enable their songs to be utilized in exchange for a percentage of the ad money produced on YouTube. By contacting the music publisher directly, you may find out if there is already an agreement in place for the song you wish to utilize.

In general, novice producers make recordings of cover versions in order to obtain recognition; nevertheless, the majority of these recordings are broadcast without the permission of the original author of the work, which may land these new talents in copyright infringement proceedings. The repercussions of uploading a cover song without a music license are determined by the owner of the copyright. Some copyright holders don’t mind YouTube covers since they improve a song’s visibility and may introduce composers or original performers’ music to a new audience. One of the best ways to ensure that your video does not get flagged for copyright infringement is to put a disclaimer in the description making your intentions with the video extremely clear and crediting the original creator. This may look like “I hereby declare that I do not own the rights to this music/song. All rights belong to the owner _____________. No Copyright Infringement Intended. ”

WRITTEN BY–
SHARANYA CHOWDHURY

2ND YEAR, BALLB

RML NLU, LUCKNOW

Unlocking the Voice Actor’s Rights in Indian Copyright Law

The Voice actor plays a very crucial role in Films and Advertisements in the Indian film industry. They engage the audience or customers with their talented voice acting and help in creating an authentic connection with the audience. Voices of voice artists are used and re-used to establish harmony with the visuals on screen. After the 2012 Amendment to The Copyright Act, 1957 (‘The Act’), many rights such as moral rights, equal share of royalty, etc. were provided to the Indian Performer. However, Indian voice actors still do not receive credit for their work and have to depend on the mercy of movie producers for royalties. In this article, we try to facilitate a legal discourse on the rights of the voice actor community.

Are Voice Actor Performers?

Performers are defined in section 2 (q) of the Copyright rules as: “performance”, in relation to the performer’s right, means any visual or acoustic presentation made live by one or more performers;

Section 2 (qq) defines a performer as “performer” includes an actor, singer, musician, dancer, acrobat, juggler, conjurer, snake charmer, a person delivering a lecture or any other person who makes a performance;

Someone who performs casually or incidentally in the normal course of the practice of the industry with respect to cinematograph films is an exception to this definition of a performer.

A voice actor can be considered a performer if they give a live visual or an acoustic presentation. In the case of Neha Bhasin v. Anand Raj Anand, it was held that live presentations in a studio also constitute a performance. The presence of an audience is not mandatory. Hence, an individual who does voice acting inside a studio is also a performer.

If a voice actor creates an original work, such as a character voice, narration, or singing performance, they may hold a copyright in that work. This means that they have the exclusive right to reproduce, distribute, and perform the work, and can license or assign those rights to others for a fee or royalty.

In cases where a voice actor is hired by a company to perform a specific role, the copyright in the recording may belong to the company, unless there is an agreement stating otherwise. However, the voice actor may still have rights in their performance, such as the right to be credited as the performer and the right to prevent the recording from being altered or used in a way that is detrimental to their reputation

Voice Actors That Are Not Performers

In movies, certain junior voice actors may be required to make crowd noises. Because there is no skill required in making these crowd noises and they don’t have a distinctive characteristic, such performances will not be considered performances under Section 2(qq).

Rights Of Voice Actors Under Copyright Rules 1957

Section 38 of the Copyright Rules 1957 deals with the Performer’s rights. According to this, section a performer has a special right known as “performer’s right” in relation to their performance. This right shall subsist until 50 years from the beginning of the year in which the performance was made.

Under Section 38A, if the performance is incorporated in a cinematograph film by a written agreement, the producer cannot dent an equitable share in the commercial use of the performance. The commercial use of the performance includes reproduction, issue of copies or distribution, communication to the public including broadcasting and commercial rental of a cinematograph film.

The provisions on assignments, licenses and copyright society apply with necessary modifications and adaptations to the performer’s right, as stated in section 39A(1) of the Act.

Problems That Voice Actors face in India

While voice actors are legally recognised as performers under the Indian copyright law, they don’t enjoy the rights given to performers.

Performer’s society- There is currently no joint Performer’s society that represents voice actors all over India. A single all-India Performer’s society for voice actors will help in streamlining the collection and distribution of funds, and can stop the unauthorised use of voice actors’ work. Such a society can also take up matters on behalf of its members in a court of law.
Royalties – The share of royalties that voice actors receive for their work is not uniform. Hence, voice actor has to determine their worth on their own. This leads to voice actors getting significantly underpaid.
Unauthorized Use – Unauthorized commercial use by producers also exploits a voice actor’s hard work.
Recognition- There is no national award for voice actors and their contributions. Not only this sometimes voice actors are not even mentioned in the credits of their work.

Conclusion

The Indian entertainment and media industry is the 14^th largest industry in the world. The Voice-over artists and voice actors have contributed majorly to the success of the industry. However, their contributions are not often recognised on par with other performers. It is now high time that voice-over artists are treated as performers under the copyright act and given the same rights that other performers enjoy.

BY-

SHAKSHI SWARNKAR

2ND YEAR LLB

ILS LAW COLLEGE, PUNE

CAN ANIMALS SUE FOR COPYRIGHT INFRINGEMENT?

In a strange turn of events, a suit was initiated in 2015 by People for the Ethical Treatment of Animals (PETA) in a California Court as next friends on behalf of a Monkey!

David Slater, a British Photographer, visited Indonesia in hopes of capturing the wildlife present there. To his surprise, a black macaque monkey did his job by clicking selfies of himself!

When Slater had left his camera unguarded, the monkey named Naruto grabbed it and took pictures of him. One noteworthy shot was of Naruto showcasing glee and self-awareness through his expressions. Slater subsequently published the ‘monkey selfies’ in a book to which he owned the copyright. Aggrieved by this, PETA, on behalf of Naruto, sued Slater demanding copyright over the pictures on the grounds that the pictures were the work of Naruto and not that of Slater.

The pertinent questions were whether PETA could sue as Naruto’s next friend and whether Naruto had Constitutional and Statutory standing to initiate a suit in Federal Court.

There are 3 factors that have to be fulfilled to assert Standing under Article III of the United States Constitution-(1)The plaintiff must have suffered an injury. (2) The injury is fairly traceable to the challenged conduct of the defendant. (3) It is likely to be redressed by a favorable judicial decision. The plaintiff must also have statutory standing.

In Cetacean Community v Bush, it was held that animals have Article III Standing. During the argument stage, PETA argued that non-human entities such as corporations have been held to be persons and were given both constitutional and statutory standing and that the Copyright Act without express authorization permits statutory standing for corporations. Therefore, the Act contemplates statutory standing for animals as well. The Court, bound by the Cetacean Community case, stated that ‘animals can have Article III Standing.’ However, it expressed that it was an incorrectly decided judgment and subsequently asserted that animals have neither Constitutional nor Statutory Standing. In relation to Statutory Standing, the Court stated that – “If an Act of Congress plainly states that animals have statutory standing, and then animals have statutory standing. If the statute does not so plainly state, then animals do not have statutory standing.”

To act as a next friend, an entity has to establish that they have a rather significant relationship with the party to the suit. The court held that PETA lacked standing as Naruto’s next friend because it had failed to establish a significant relationship with Naruto and also stated that animals cannot be represented by a next friend.

This peculiar suit resulted in Slater agreeing to donate 25% of the future revenues he attains from the images to charities protecting crested macaques’ habitats.

This suit has become one of its kind in the Modern World. It raised some rather important questions pertaining to the Standing of Animals before the Court of Law. Although it was held that animals lack Constitutional and Statutory Standing, there are a plethora of statutes that do provide protection to animals from grievances.

BY-

OLIVIA MATHEW

3^rd LLB

ILS Law College, Pune

MICKEY MOUSE TO SOON JOIN WINNIE-THE-POOH IN PUBLIC DOMAIN!

Introduction

After a 95-year-long run of copyright protection, on 1 January 2022, the storybook character Winnie-The-Pooh finally made its entry into the public domain. Following suit, Disney’s most popular animated film character, Mickey Mouse who was first seen in the 1928 animated short film Steamboat Willie is also set to enter the public domain in 2024.

Why?

The United States offers copyright protection of 28 years for those works created before the year 1978 with an additional renewal period of 67 years which effectively protects the work for a period of 95 years. And for these iconic characters, that time is up.

What does this mean for Disney?

The rights as well as profits which until recently Disney exclusively enjoyed are now open to the public, paving the way for several variations, spin-offs, and revivals of these works without any legal obstacles or limitations. However, there is a catch. Over the years, both these characters have seen many changes in their visual appearances.

The original Winnie-The-Pooh character created by author A.A. Milne and illustrator E. H. Shepard in 1924 surprisingly did not don his present-day counterpart’s iconic red cropped t-shirt. It was in 1930 when American Producer Stephen Slesinger purchased the merchandising rights to Pooh, that he introduced the red t-shirt. Disney also adopted the red t-shirt when it purchased the merchandising rights from him later in the 60s.

OLDER AND NEWER VERSIONS OF BOTH THE CHARACTERS

Similarly, the Mickey Mouse character depicted in Steamboat Willie has seen numerous visual alterations.

The catch here is that only the original version of the characters, i.e., their original appearances, have entered the public domain and any newer, and possibly more familiar versions are still protected under copyright. Meaning, the use of Pooh wearing a red t-shirt would still constitute copyright infringement. This, however, hasn’t entirely deterred the public. Actor, film producer, and businessman Ryan Reynolds have managed to depict Pooh in his work in a way that causes no infringement. The adored character is also slated to be part of an upcoming horror film.

Since the public domain is considered to be free of the barriers of intellectual property rights, work being released here allows an opportunity for creativity and innovation. However, artists should be meticulous while using these characters in their work as Disney continues to own the copyright to the newer versions of these characters.

Does that mean Disney is backing down completely?

That’s far from it. Along with the copyright to the newer versions of these characters, Disney also holds trademark protection for the commercial use of these characters. This would mean that a work has to be clearly distinct from Disney’s interpretation of these characters so as to avoid a trademark infringement. Disney also has trademark protection for merchandising purposes, ensuring that profits made through these characters still come Disney’s way.

With these iconic characters entering the public domain, new-age storytellers now have the freedom to revive age-old tales with alternate storylines, thereby preserving these beloved children’s characters for generations to come.

BY-

OLIVIA MATHEWS

3^rd LLB, ILS Law College, Pune

Memes and Copyright Infringement In India

Introduction

With the increase in the number of Internet users, the use of social media has become very common in the modern-day scenario. Social media was created to remove the physical barriers between people and make human interaction easier and barrier-less, but with time social media has become a great platform for sharing content, images, thoughts, beliefs, humorous content, etc. One such humorous content is memes.

Memes are an image, video, piece of text, etc., typically humorous, that is copied and spread rapidly by internet users, often with slight variations & the person who creates a meme is called a “memer”.

Types of Memes and their impact on Copyright Protection

Generally, there are two types of memes:

1) Where the person creating the meme uses images or videos or texts which are already copyrighted by some other creator to create his meme.

For Example, The famous character of “Dwight K Schrute” from the famous web series called “the office” is used by many memers to depict savage and humorous replies.

In the above case the copyright of the image of “Dwight K Shrute” lies with the producer of the web series “the office”. Therefore, if the producer of the web series can prove that this meme is infringing his copyright then the producer can stop the meme from being shared further. The key point, in this case, is to determine whether there is any substantial imitation or copying of the original work and if yes then such memes would constitute infringement.

2) Where the person creating the meme uses images or videos or texts which originally belongs to him to create his memes. Such memes can be termed artistic works as there is a sufficient amount of talent, labor, and judgment involved in the creation of such memes. Hence the creator of such memes can claim copyright on them. But on the contrary sharing, such kinds of memes without the permission of the creator will lead to copyright infringement and the creator of the meme can stop his meme from being shared.

“Doctrine of Fair Use” under The Copyright Act 1957 (Section 52)

“The doctrine of fair use” acts as a good defense when it comes to copyright infringement. Section 52 The Copyright Act of 1957 has enlisted certain grounds to determine whether work is a “fair use” or not. To claim the defense of fair use any one of the following grounds must be satisfied.

Firstly, it is important to determine whether the purpose of the copied work was to gain a commercial benefit or not. Memes are generally created for entertainment purposes and there is no element of commercial benefit. However, if a meme is created for commercial benefit without the permission of the author then the creator of the meme cannot take the defense of “the doctrine of fair use”. Generally, memes are created for entertainment purposes and hence they satisfy this ground under “the doctrine of fair use”.
Secondly, it is important to determine the Nature of Copyrighted work, generally, memes are made of already published materials and in such cases, the author of such work has exhausted his public appearance hence the memer can claim the defense of fair use.
Thirdly, the amount or proportion of copyrighted work used, if a very slight proportion of copyrighted work is used and the substantial portion is not copied then the creator of a meme can take the defense of fair use.
Fourthly, the effect on the consumers, generally memes are targeted only for entertainment purposes and not commercial gains. Hence memes are protected under this doctrine as they are mostly for entertainment purposes.

The only exception to the defense of fair use is when content is made to harm society or violate an individual’s right to privacy enshrined under article 21 of the Constitution. In these cases, the memer cannot take the defense of fair use and he is liable for legal action.

Conclusion

Memes and copyright infringement have become a very common issue in India, but to date, the courts have not witnessed any meme-related litigation. There have been cases where defamatory remarks have been circulated through memes but as of now, no litigation in India has taken place for copyright infringement with regards to memes. Hence in India, we need better Copyright Protection and new cyber laws to cover such aspects, we need to increase awareness about the Copyright Laws in India and we also need to educate individuals about copyright infringement.

In the year 2021 the parliament took a forward step and passed the “The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 which talks about identifying the creator/originator of the content in case an inappropriate content and other ethic codes relating to social media. This step is very useful to curb the infringement of copyright through social media platforms as the originator/creator of the infringing content can now be identified.

BY-

YOGESH SOMANI

1ST LLB, ILS LAW COLLEGE

Is copyright law dancing tuneless around choreographers?

One of Bollywood’s most well-known choreographers, Remo D’souza, intended to copyright his choreography for the ABCD film he was directing in 2013. Is Remo D’souza, or any other choreographer, able to assert copyright in relation to choreographic works in India?

STEP UP to examine is dancing cinematography or dramatic work and whether dance moves are copyrightable.

Dancers perform with their mind and body in full swing and energy while still upholding the discipline required by the dance form, making dance the most expressive of all the arts. Many different dance styles have emerged and developed in cultures all throughout the world, and each dance has a distinctive structure and routine.

While some dance forms such as Kuchipudi or kathak have a predefined set of rules and routines for the entire dance performance, while “Michael Jackson” signature dance moves like his “moonwalk” or his famous “45-degree dance” are singular steps complete in themselves.

Even while we are aware that these recognizable dances are in the public domain, we nonetheless have the right to defend the authors’ work against attempts at infringement. Because everything unique, a product of the artist’s talent and intellectual labor, must be protected. Here, copyright protection and other forms of intellectual property are relevant.

In India, such signature moves or unique systematic patterns of dance moves are recognized as choreographic works and, therefore, are protected as dramatic work as defined in section 2(h) of the copyrights Act 1957. The limitation of dramatic work being copyrightable lies in that fixation and dramatic work exclude any form of cinematographic work.

These requirements must be met for a choreographic work to be copyrightable:

The creation of choreography must be original.
It must be systematic dance moves or steps that follow a pattern.
For choreography to be protected by the Copyright Act of 1957, it must be produced in a tangible form or transformed into writing.

In Bikram’s Yoga Coll. of India, L.P. v. Evolution Yoga, LLC[1], the issue of whether or not the sequential and systemic method of yoga is protected by the Copyright Act was brought up. It was decided that because the yoga poses are a type of organized physical activity, they are not protected by the Copyright Act.

Lacuna exists in the law.

From a simple reading of this section, it is clear that one must establish a fixation to get copyright protection for choreography. According to the World Intellectual Property Organization (WIPO), “fixation” includes:

Writing on paper.
Storing data on a disc.
Painting on canvas.
Recording audio on tape.

Therefore, if one wants to secure a copyright for choreography, they must convert it into a fixed form, such as a written or recorded version, “or otherwise,” and choreography shouldn’t be a part of cinematography. The phrase “or otherwise” and the exclusion of “cinematograph film” limit the section’s application to choreography.

The Supreme Court ruled in Academy of General Education, Manipal, and Others vs. B. Malini Mallya[2] that the ballet dance qualifies as a dramatic work under the Copyright Act, 1957, when reproduced in a literary form. Therefore, the artist or choreographer must transform the choreography or dance piece into a writing form so it may be registered with the registrar to obtain copyright.

The choreographic work is unquestionably copyrightable, but there is ambiguity because cinematography films are not included as a type of fixation, which is quite the challenge in India. Unlike in India, Choreography can be fixed using any method, including videotaping, in the United States and the United Kingdom. It does seem irrational because dramatic works on video recordings cannot be protected by copyright.

Thus, it is evident that the legislation surrounding copyright in choreography is ambiguous and unresolved. For dancers, it is covered under the ambit of performer’s rights. Increased dance awareness and visibility of creativity are sorely needed in India to motivate more choreographers to protect their rights and underline a rise in copyright applications for choreographic works.

By-

SANDHYA BALAJI

4TH YEAR, BALLB (HONS.)

CHRIST UNIVERSITY, LAVASA

[1] Bikram’s Yoga Coll. of India, Ltd. P’ship v. Evolation Yoga, Ltd. Liab. Co.,803 F.3d 1032 (9th Cir. 2015)

[2] academy of general education, manipal v. malini mallya, (2009) 4 scc 256

TATTOOS AND COPYRIGHT INFRINGEMENT

The art of tattooing traces back to the upper Paleolithic period in Europe and it can be said that tattoos nowadays have become more common since it is widely loved by people these days. But it is certain that pages of history would have never imagined that the tattoos would attract copyright infringement. Yes, you read it right. Certainly, tattoos do draw copyright infringement if the tattoo involves a copyrighted element. This article discusses on tattoos and their copyright effects by analyzing the case of Sedlik v. Von Drachenberg.

Now, let us quickly get into the facts of the case, a lighting technician tattooed a photo of legendary jazz musician Miles Davis onto his arms. That particular photo of Miles Davis was photographed by a Californian photographer Jeff Sedlik and further he copyrighted the image owing to its iconic representation of Miles Davis. The tattoo artist, in this case, is Katherine Von Drachenberg, who is a world-renowned celebrity tattoo artist and she is apparently the principal defendant in this case. It was alleged by Jeff Sedlik that Kat von D has committed a copyright infringement by reproducing the photograph of Miles Davis onto her client’s skin since it is an unauthorized derivative work and then displaying it on her social media handle with a motive to promote her business.

**The iconic photograph of Miles Davis captured by Sedlik**

Kat von D sought the plea that her tattoo work is a fair use of the copyrighted photograph. The court is tasked with determining two issues whether or not, Kat Von D employed copyrightable elements from Sedlik’s photograph in the creation of her tattoo, and if it is in affirmation, then whether or not her work is protected by the copyright law’s fair use doctrine.

On the question of substantial similarity, Kat von D argued that the protectable elements of the copyrighted photograph were not copied. The Central District of California Judge Dale Fischer left the question for the Jury to deliberate upon since the tattoo contained certain differences such as light, shading on Miles Davis face, the hairline on his head, and the background. On the question of fair use as well the issue is left to the Jury to decide upon.

It is certainly a complex issue to decide upon since it touches the boundaries of an individual’s fundamental rights to bodily integrity and personal expression. On the basis of lack of evidence, the summary judgment was granted in favor of Kat von D’s company. Thus, the intricacies involved in a tattoo of a copyrighted photograph can be well understood in this case.

AISHWARYA. N

3^rd year BA LLB (Hons)

UPES School of Law

PAPARAZZI AND THEIR COPYRIGHTED PHOTOGRAPHS OF CELEBRITIES

It is well evident that there is a tug of war between the celebrity’s privacy and the paparazzies with their cameras. All of us must have come across the videos of paparazzies running behind celebrities chanting their name to take their pictures outside of gyms, restaurants, weddings, functions and where not. But have you ever wondered what would be legal effects of those photographs if the celebrity who is the subject of the photograph shares those pictures that were clicked by paparazzies? Well, this article analysis the same.

A photograph is an artistic work going by the definition of section 2(c)(i) of the of the Copyright Act, 1957 and going along with section 2(d)(iv) of the Copyright Act, 1957, author in relation to a photograph is the person taking the photograph. So, it is apparently clear that a photographer is the author of the artistic work but herein something that is noteworthy is that many of the commentators are advocating for co-ownership of the photographs between the photographer who is the author and the celebs who are the subjects of the photographs.

The co-ownership of a photograph was claimed in the case of Gigi Hadid who is a famous model, she was sued by an agency namely Xclusive lee for copy right infringement for posting a picture clicked by paparazzi on her social media without consent. Surprisingly, the court in this case accepted the claim of co-ownership but that is only on the basis that the status of the copyright application was pending. So, this brings us to understand the effect of photograph which not copyrighted.

On the other hand, there is an argument of invasion of privacy of the subjects, its is quite known that French president Emmanuel Macron sued paparazzi for the same. One such event is when a French magazine which published Duchess of Cambridge, Kate Middleton’s photographs without her consent was ordered to handover all of the digital copies of photograph and was even ordered to pay € 2000 as fine.

On the question of whether celebrity can use the defence of fair use, the case of Garware Plastics and Polyester v. Telelink and Ors[1] is to be analysed wherein the court brought in the element of commercial aspect behind sharing of a copyrighted photograph into the picture in consideration of fair use or fair dealing under section 52 of the Copyright Act, 1957. Hence, the court struck down fair use as a valid defence.

Hence, it can be concluded by saying that there is a need to consider the co-ownership of the subjects of the photographs since they play an inevitable part of the photograph but the Indian Copyright Act and the judicial precedents strict in this aspect.

AISHWARYA. N

3^rd year BA LLB (Hons)

UPES School of Law

[1] Garware Plastics and Polyester v. Telelink and Ors AIR 1989 Bom 331

Can characters be protected under COPYRIGHT?

Introduction

Characters such as Mickey Mouse, Mr. Bean, James Bond, Harry Potter, and others have become a part of our everyday life. These characters have sufficiently entered our lives, from watching them on television every day to bringing merchandised products of our favorite characters into our homes. These characters develop from episode to episode and series to series, and this development is brought about by the writers of such characters. Unfortunately, copyright laws all around the world do not recognize characters as the subject matter of copyright, but judicial decisions all over the globe have established a few tests to reward copyright protection to characters.

Character Delineation Test

The character delineation test was established in the case of Nichols v. Universal Pictures Corp[1], the court held that the characters can only be protected under the scheme of copyright if they are sufficiently delineated. The test prescribes that the character has to be developed sufficiently and the more developed the character, the more it embodies expression, and less a general idea. And hence, the more likely it is to be copyrightable.

The ‘Story Being Told’ Test

The story being told test was established in the case of in Warner Brothers Pictures Inc. v. Columbia Broadcasting System., the court held that ‘No character is protectable under the copyright law unless such character is extremely well-delineated as to form the ‘story being told’ rather than being a mere chess man in the game of telling the story’.[2] Simply said, this test requires that the character be an integral component of the story. The character must be so ingrained in the plot that eliminating the character renders the story irrelevant.

Towle Test

The Towle test has been developed in the case of D.C. Comics v. Towle, under this test, a character is entitled to copyright protection if (1) the character has “physical as well as conceptual qualities,” (2) the character is “sufficiently delineated to be recognizable as the same character whenever it appears” and “display[s] consistent, identifiable character traits and attributes,” and (3) the character is “especially distinctive” and “contain[s] some unique elements of expression.”[3] This test has been successfully applied in the recent case of Daniels v. Walt Disney Co.[4]

Conclusion

Other than these requirements, there is no other means for a character to receive copyright protection, and meeting each of the aforementioned conditions appears difficult to achieve. The characters are the outcome of artistic works, and as such, they must be listed separately as the subject of the copyright.

Ekta Dixit

LLM (IPR & Tech Laws)

JINDAL GLOBAL Law School

[1] Nichols v. Universal Pictures Corp., 45 F.2d 119 (2d Cir. 1930)

[2] Warner Bros. Pictures v. Columbia Broad. Sys., 216 F.3d 945 (9th Cir. 1954)

[3] DC Comics v. Towle, 802 F.3d 1012 (9th Cir. 2015)

[4] Daniels v. Walt Disney Co. – 958 F.3d 767 (9th Cir. 2020)

Saree in Law

Saree is well-known Indian attire worn by women not only in India but around the world. It has captivated audiences since time immemorial due to its sensuality and versatility. A saree can be draped in numerous ways that highlight its versatility, culture, tradition, community, occasion, and beauty. Saree is an imperative part of the Indian tradition and culture. Whether it’s Madisari, a saree-draping style that was traditionally worn by women after their marriage in the Iyengar and Iyer culture of Tamil Nadu, or the Atpoure Shari, the saree draping style of West Bengal or Kappulu a saree draping style of the older women in Andhra Pradesh or the Nauvari worn like a dhoti in Maharashtra, the draping or tying style of an unstitched garment or 3.5 to 9-yard saree, varies by region, community, functionality, and, on occasion. In a world full of ever-changing fashion trends and fast fashion, Indian sarees and the traditional draping style remain constant. India has a treasure trove of saree styles and different ways of draping them that have even inspired the international fashion world.

Despite this India lacks a law regime to protect the saree draping styles. The Indian Trademark Act 1999 can protect the brands selling sarees while the prints and designs can be protected under the Copyright Act 1957 under original artistic work or the Designs Act 2000 for the designs aesthetically appealing. However, one may think to protect saree draping under ‘any other work of artistic craftsmanship’ under the Copyright Act 1957[1], but issues related to calculating the time, originality, and who to attribute the authorship arise. While the most obvious branch of IP the mind associates to saree is Geographical Indications, however, registered GIs under the Geographical Indication Act 199 like Bhagalpuri silks, Kanchipuram silks, Mysore, and Muga silks, which are world-famous as fabrics associated primarily with sarees. Further, saree draping is fundamentally considered a process or an activity, which may lead one to the domain of patent protection but due to the activity being in the public domain since time immemorial protection under the Indian Patent Act 1970 is not possible for saree draping.

It can thus be concluded the present IP regime in India including trademarks, copyrights, patents, designs, and even GIs mainly protect the brand name and logo, the weave and fabric, the manufacturing process, the unique designs, or a combination of all of these, and the community for protecting/maintaining the standards and nurturing the culture and tradition as GIs. But neither of the above talk or provide protection to saree draping.

How can India protect Saree Draping?

It is certain that the current IP regime in India cannot provide the much-needed protection to the myriad of saree draping styles prevalent in a culturally rich country like India. In such a scenario, India can develop the lesser-known branch of Intellectual Property Rights known as Traditional Knowledge which further incorporates Traditional Cultural Expressions. Saree draping styles perfectly fit under the WIPO definition for Traditional Cultural Expressions[2], as tangible forms of expression – folk costumes. Saree draping styles can be envisaged as folk / traditional costumes worn by when and women of communities. Thus, a well-codified law to protect such traditional knowledge or traditional cultural expressions which are passed from generation to generation could help to protect saree draping styles in India. However, locating the owner of the traditional cultural expressions and the fact that sarees are commonly worn in Nepal and Bangladesh, proprietor and territory issues may be common.

However, India can adopt the economic right ‘Domaine Public Payant’ to protect traditional cultural expressions such as saree draping styles. According to this right, when the work enters the public domain after the normal period of protection expires, it cannot be used freely as in the case of normal free public domain. On contrary, it requires a royalty to be paid for the commercial use of the work.[3] Thus, any non-Indian who commercially exploits Indian saree draping styles would be required to pay a royalty or prescribed fee to the collecting society or equivalent. Till date, only 5-6 countries have adopted and incorporated this right and could be a feasible option for India to adopt to protect saree draping styles as Traditional Knowledge and Traditional Cultural Expression. Saree is a prominent part of the Indian culture and a source of inspiration to fashion trends across the world. Protecting the different traditional ways of draping a saree is in fact an essential way to protect the diverse culture and traditions in India.

[1] Section 2 (c)(iii)

[2] https://www.wipo.int/tk/en/folklore/

[3] https://unesdoc.unesco.org/ark:/48223/pf0000143960