In the modern world, Intellectual property protection is critical to fostering innovation. Without the protection of ideas, businesses and individuals would be unable to reap the full benefits of their creations and would subsequently focus less on research and development.
Similarly, artists would not be fully compensated for their creations and cultural vitality would suffer as a result. Moreover, it has become alarmingly easy for anyone to infringe someone else’s intellectual property.
The rising industry of the Media and Entertainment business has created the need for a better and more stringent legal backup to safeguard the rights of the Intellectual Property holder.
The various Intellectual Property Rights attained by the businesses and artists in the Media and Entertainment Industry are:
- Trademarks:
Trademark is the unique and distinct identity of a business that differentiates its products, services and the idea behind it from its competitors. In today’s global business environment, trademarks are territorial and hence, enough emphasis cannot be placed on the importance of seeking intellectual property protection for valuable brands and their unique identities.
An exclusive identity of a business must be created in order to distinguish itself from that of others, which can be achieved by a thorough and comprehensive trademark search to negate the possibility of any objections from other parties during the process of registration of the said trademark.
The Trademarks Act, 1999 enables businesses and individuals to register a unique sound, smell, logo, photograph, word, slogan, any color combination and graphical design as trademarks.
A trademark adds tremendous value to a business. Thus, entrepreneurs who do not register their trademark may find themselves entangled in a series of issues which include theft of identity, other businesses selling their products or services under the same name or similar flagship and competitors reaping upon the goodwill of other businesses by deception. This will inevitably create confusion in the minds of the end customers.
The customers associate a business company and its products and services through their distinct identity. Thus, it is very important to protect the trademark and register it for further rights.
A trademark once applied for registration can be used with the “™”symbol and upon registration, the same can be used with the “®” symbol. The validity of the trademark registered in the name of the proprietor is for 10 years after which it can be renewed for a further period of 10 years.
A trademark attorney helps with the registration of trademarks and thereby protects the proprietor from infringement of trademark. A trademark attorney also assists in prosecuting matters during the registration process and protects the interests of proprietors from any objections thereto and issues cease and desist notice to infringers of an applied trademark.
A business may strategize its earnings by deciding to assign their trademark and/or by way of licensing the same to other businesses with a view to earn royalties. A trademark can be assigned either in part or in whole, explicitly with or without goodwill, and also for use in a specific territory. Various other aspects such as the licensing rights to use the trademark, royalties, term of the license and the area of the license have to be negotiated and articulately drafted in an agreement to safeguard and protect the rights over the trademark.
In the media and entertainment industry, the title of a project is registered by the producer as a ‘service mark’ under Class 41 of Schedule 4 of the Trademarks Act, 1999. It is critical to register the title as a service mark since it creates an association of the film title with the production house, the storyline and the artists involved with the project.
- Copyrights:
The exponential growth in the Media and Entertainment industry has led to a major rise in the challenges faced in this sector which are mainly related to the infringement of Intellectual Property Rights, and in particular, the violation of Copyrights.
The protection of Copyright is given to artists, developers, composers, producers, etc. which subsists in various classes of work such as original literary, dramatic, musical and artistic works, cinematograph films and sound recordings, as enlisted under Section 13 of the Copyright Act, 1957.
Assessment of the Intellectual Property for the artwork to gain protection under the copyright is a strategic and logical process to be done by an expert in order to attain the rights for the work or a part of the work, created before publishing or broadcasting. Copyright registration enables creators to broadcast their work, reproduce rights assigned to them, adapt and translate the work for commercial purposes.
Artists, developers, producers etc. seeking copyright protection are usually unaware of the numerous rights available to them under the law. Along with the copyright, moral rights, neighboring rights and economic rights are other such rights available to the individuals and the entities seeking copyright protection. Several issues relating to copyrights arise which subsequently give rise to disputes due to copyright infringement and copyright piracy. Thus, artists, producers and developers, etc. face multiple roadblocks and hardships with respect to protection and enforcement of their rights.
Entertainment business is currently booming and is relentlessly searching and acquiring new, unique and different mediums of entertainment. An attorney can assist in acquiring rights for licensing, merchandising, resolving license violations, assignment, negotiating and strategizing. These rights are well structured and planned in a manner to protect the interests of the individual and business entities.
The most common predicaments faced by the artwork proprietors are illegal reproduction, importation and distribution of the whole or a part of the protected artwork and issues regarding ownership/ authorship of the copyright. To overcome the aforementioned hardships, proper documentation of the protected artwork needs to be carried out along with the rights and obligations explicitly specified in the assignment and licensing agreements by identifying the work and the rights that are intended to be assigned by the assignor, the territorial extent, the period of assignment and a firm specification of mode and medium of exploitation in the contracts. Moral rights of authors also need to be protected from any mutilation, modification, distortion and any other work of such nature which is prejudicial to the author’s reputation and honor.
Audio- Visual work/ Motion Pictures
Films or any other form of audio video motion pictures are large scale projects which need methodical legal strategies and documentation to protect rights and define the liabilities and limitations of the parties involved in the various stages of filmmaking.
Script generation is the primitive stage in filmmaking which deals with various issues such as theft of idea/story/script, grant of rights to multiple individuals, rights to adapt and remake and infringement of other Intellectual property which can be overcome by minimizing the legal risks with specific documentation like Non-Disclosure Agreements, Memorandum Of Understanding, Artist Service Contracts and/or Screenplay agreements which entitles the writer/ artist to structured compensation, collection of royalties, indemnity, lock in, rights and obligations on any breach. After the script is registered, the process of film making starts which again involves various parties and freelance artists whose objectives are laid in agreements by giving them rights and safeguarding the producer, artists and the employees from any possible breach.
Upon the completion of the film, the exhibition and the regulation is governed by the Cinematograph Act, 1952. The Central Board of Film Certification (CBFC) is assigned the task of certifying films after which the producers get the broadcasting rights. An attorney can assist in applying for the CBFC certification for the motion picture, complying with the objections and other agreements for broadcasting the artwork on any other medium/platform.
Distribution agreements between the producers and distributors of various platforms like OTTs, DVDs, Theatres etc., which mainly involve specific location for distribution, number of screens for exhibition, definite rights and duties of both the parties, indemnity against any breach of duties, promotional and advertising activities, collection of royalties, and remunerations etc., are negotiated and structured in an agreement by a lawyer.
Music Industry
With the music industry rapidly evolving with content such as music videos, cover songs, remixes, music albums and film music, it has become more and more essential for music composers, lyricists and producers to define their rights and obligations to each other.
A song is a seamless blend of lyrical and musical work often collaborated with performance of various musicians and singers into a single sound recording. The first owners and authors of lyrics, musical compositions and sound recordings are lyricists, music composer and music producer, respectively.
Every person involved in a song is entitled to protection under the Copyright Act, 1957. In a music track of a film, the rights of the song exist with the lyricists and composers as stated in Section 17 of the Copyright Act, 1957 which provides an exception to the concept of first owner of the work. Owing to the complex nature of the music industry, it is essential to safeguard the rights with the help of extensive documentation and clarity on the first owner of the music piece.
In case of assignment agreements, adequate representations and warranties with respect to the originality of music and lyrics shall be lined out and a properly negotiated indemnity clause for safeguarding from any breach or any dispute arising out of third parties in the future has to be agreed upon. Music licensing agreements need to be drafted in a tactical manner in order to secure adequate royalties, transferring rights and safeguarding the ownership over the music composition/song.
For cover versions, the protection of rights is secured under Section 31 of the Copyright Act, 1957 and only through appropriate negotiations can an artist legally reproduce a cover version. With legal assistance, an artist can smoothly comply with the conditions for cover versions without violating the rights of the first owner or author. For such artwork, permission is required from the author by issuing a legal notice including but not limited to the intention to remake the sound recording.
The need to protect the unique identity of a business entity has become very important, and is achieved with the help of a lawyer who searches for the most fitting mark/logo nationally or internationally, applies for the same, prosecutes in case of any oppositions/objections, obtains registration, issues legal notices for infringement and proposes a legal strategy to safeguard Intellectual Property and other rights while assigning or giving license for the same with the help of precise drafting, negotiating and legal guidance.
With numerous elements, parties and high creativity artwork, it has become essential for an artist, producer, developer, and distributor etc, to consult a lawyer for all the legal formalities, negotiations, business strategies and legal advice. A lawyer facilitates the protection of rights, and highlights the liabilities and breach thereof in order to gain maximum profits through royalties. Furthermore, a lawyer minimizes the legal risks by protecting the original artwork with underlined ownership.
Safeguarding the originality of your work or brand is just as important as its creation, and thus, must not be overlooked.