Author - Devesh Tripathi , Student , National Law University, Aurangabad
Introduction:
Title of a movie is decided with a view that it would make an impact on the mind of audience. A Cinematographic film or song is remembered with its title. Title plays an important role in success of a movie that’s why the directors tend to choose a suitable title for the movie. People usually remember these artistic works with its titles. Script, songs and dialogues are artistic work and they are protected under copyright laws but the titles of film are not protected under Copyright Act 1957.
Protection under Copyright Act:
Section 13 of the Copyright Act doesn’t covers within itself protection to title of the film and the title neither graduates itself to literary work described under section 2 (o) of Copyright Act 1957. Any artistic or creative work which is original and includes labor and sweat in its production is copyrightable under the copyright Act. The Supreme Court in the case of Krishika Lulla and Ors. v. Shyam Vithalrao Devkutta & ors [i] held that titles of a movie can’t be protected under sec 13 of Copyright Act. The ratio behind this Judgment is that copyright protects expression of ideas and the movie title is too short to be graduated as expression of idea. The title is too short to be an independent work hence is not copyrightable was held by Madras High court in the case of M/s Lyca Productions & Anr. vs. J. Manimaran.[ii]
Protection of title under Trademarks Law:
The title of the film do not get clear cut protection under Trademark act 1999. According to the definition of trademark under Sec 2 (1) zb, Trademark can be any word, symbol or any combination that is capable of being represented graphically. Trademark is used for distinguishing the goods and services of one person from that of another. According to Nice Classification there are forty five classes of goods and services under which trademarks are registered. Class 41 includes entertainment as a service within itself. The movie titles can be protected under Trademark law under two main circumstances.
Firstly : A film title can be protected as the title of the series of literary work. The title of the series of works is entitled to protection under Trademark Act because it specifies that the editions of the literary works are coming from the same source. The series of films come from the same production house , hence , they are eligible for trademark protection. For example Golmaal series is made by Shree Ashtavinayak cinevisison and Dhoom series is produced by Yash Raj films.
Secondly : The Title of single movie can also get trademark protection . In order to get protection under Trademark Act, the title of the film should have gained secondary meaning. When the title of movie becomes so well known that people starts recognising it with connection to some producer or production house then the title is said to achieve the secondary meaning for the purpose of the Trademark Act. In simple words when a movie title becomes well known it is said to achieved secondary meaning. There are certain factors such as amount of money used for the marketing of the film and time duration from which the movie title was being used. These factors can be considered by the courts while deciding whether the movie title has achieved secondary meaning or not.
In Sholay Media Entertainment Pvt. Ltd. & Ors. v. Parag Sanghavi & Ors [iii] , the defendants made a movie and the director of the film was Ram Gopal Verma. The title of the film was Ram Gopal Verma ki Sholay and the name of characters were also the same. The court in its judgment held that the film Sholay was a big hit and has achieved the secondary meaning hence the plaintiff has trademark over the name such as Sholay and Gabbar. The court directed the defendants to refrain from using the names of character of film Sholay.
In Prasar Bharti v. Ritu Arya & ors[iv], the defendants were making a film titled Doordarshan. Doordarshan is famous as a channel that is owned by Prasar Bharti, hence the plaintiff went court and alleged passing off by the defendants. The court granted injunction and directed defendants to refrain from using the word Doordarshan.
In Biswaroop Roy Chowdhury v. Karan johar[v], the plaintiff had registered the title Kabhi Alvida Na Kehna under class 41. Karan johar also registered the same name with AMPTPP. The plaintiff sought injunction against the defendant saying that he registered the title before the defendant and the defendant is passing off. The court held that due to marketing and huge investment the defendant has made common people believe that the title of movie is associated with him. Hence there was no relief granted to the plaintiff in this particular case.
Analysis of titles not getting registered under Copyright.
It is widely known that all the artistic works are protected by the way of Copyright, the question arises why title being part of the artistic work is not protected under Copyright Act. Madras High court in lyca productions case held that title of book or movie is too short to be considered as independent work. The title of the film can’t be called as original work with respect to the definition of work in Indian Copyright Act 1957. Section 13 of the Act talks about the works that can be copyrighted and sec 16 of the Act states that Copyright will be granted to only those work which are enlisted under sec 13 of the Act. The title of the film doesn’t find its place under sec 13 hence it is not copyrightable.
Conclusion:
Title of the movie is not considered as original independent work under sec 13 of copyright Act hence it can’t be protected under Copyright Act. Under Trademark Act the film titles can be protected under two circumstances that is , if the film is a part of franchise then the title can be registered as series mark and if the title of the film has achieved a secondary meaning with respect to audience then it can be protected under the Act. A title of the film is not considered as expression of idea, hence it is not entitled to protection under Copyright Act. Therefore it can be said that Copyright Act gives zero protection and Trademark Act gives partial protection to the title of the film.
References :
[i]. Krishika Lulla and Ors. V. Shyam Vithalrao Devkutta & ors (2015) 129 CLA 0001
[ii]. M/s Lyca Productions & Anr. vs. J. Manimaran O.S.A.No.63 of 2018
[iii]. Sholay Media Entertainment Pvt. Ltd. & Ors. v. Parag Sanghavi & Ors CS (OS). 1892/2006
[iv]. Prasar Bharti v. Ritu Arya & ors CS(COMM) 96/2020
[v]. Biswaroop Roy Chowdhury v. Karan johar 2006 VIII AD (Delhi) 351
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