The Producer of a work is entitled to exploit the work for the entire term prescribed under Section 26 of the Copyright Act 1957 and is not restricted for a particular period by an agreement with the performer. The right given under Section 26 of the Copyright Act cannot be whittled down by any Clause between the parties so as to defeat the provisions of the statute.
This was held by the Madras High Court in Kajal Agarwal vs. The Managing Director, V.V.D. and Sons Pvt. Ltd. (25.06.2018 – MADHC) : MANU/TN/2869/2018
The appellant being popular actress was approached by the respondent to endorse, their products of hair oil through advertisements. On mutual negotiations, the terms were finalised and the appellant agreed to the offer made by the respondent. As per the written agreement the respondent could use the advertisement material only for a period of one year. However, in violation of this specific term in the agreement, the respondent continued to use the advertisement materials without even obtaining any consent from the appellant.
Where the Copyright Act gives the first owner of the copyright of the cinematograph film a term of 60 years to exploit the work under section 26 of the Act, whether the same could be restricted by the parties by way of a contract for a lesser period?
whether by virtue of Clause 9 of the agreement, the respondent can enjoy this copyright only for a period of one year and not beyond that period?
In the cinematograph film produced by the respondent, the appellant is one of the performer along with others like a cameraman, music director, director of the advertisement film etc., and it is a combination of all these which results in the cinematograph film where the respondent is the author of this entire work and the respondent becomes the first owner of the copyright of this entire work. A person who thus becomes the first owner of the copyright for this entire work, has been conferred with a statutory right by virtue of Section 14 (i) (d) (iii) for a period of 60 years over the cinematograph film. This statutory right cannot be taken away by a performer in the cinematograph film by virtue of an agreement.
Once the respondent becomes the first owner of the copy right, the right shall subsist for a period of 60 years as provided under Section 26 of the Copyright Act. The copyright of the respondent is not curtailed by proviso (b) or (c) to Section 17 of the Act.
There must be an agreement to the contrary to the effect that the parties themselves agreed that the producer will not have the copyright in spite of producing the cinematograph film. In the instant case this proviso to Section 17 will not come into play since the appellant has agreed that the cinematograph film and the entire promotional material will be the copyright of the respondent. Therefore, there is no agreement to the contrary taking away the copyright of the respondent.