India - Courting Controversies: Dispute Resolution Finds A Sweet Spot In Indian Media Industry.

India’s media and entertainment industry has always been close-knit. It has thrived on inter-personal relationships and handshake deals rather than extensive legal contracts, which worked well for decades. The far and few litigations over the years was telling of this fact.

But trends are changing!

There is growing awareness and deeper understanding of rights and their worth, intellectual property violations, infringement implications, content related concerns, defamation, personality rights issues and privacy related apprehensions.

With cross-border deals becoming common place in this sector, funding from private and international players is on the rise. Simultaneously, emerging new age rights and hold back structures introduce commercial intricacies. Consequently, there is a steady shift towards the need for diligence on rights, meticulous paperwork, comprehensive content review, execution of binding documents, legal opinions and even initiating legal actions (notices, negotiations, litigations) to uphold contracts and safeguard rights.

We discuss some evolving genres of media litigation in this article.

The famous, ‘just’ before the release injunction suits:

Everyone has heard of it, and most in media industry have endured it. What most litigants forget is, injunctions are never granted as a matter of right. To seek the relief of an injunction, the court is required to be satisfied that there exists a prima facie case, balance of convenience and irreparable loss and injury that would occur if such relief were not granted.

Also, timely action is key! Indian courts have time and again observed that delay in approaching the court (e.g. trailer was out for a while before release, but court was moved just before release) to enforce rights does not work favourably. In a copyright infringement case against the Shahid Kapoor movie, “Jersey”, the Bombay High Court refused to grant an interim injunction, citing delay on part of the petitioners in approaching the court.[1] Similarly, the Delhi High Court refused to stay the release of the movie “Lootcase” because the petitioners had approached the court, claiming a copyright infringement, just twenty-four hours before the release, despite the promos of the movie being in the public domain for a year.[2]

Commonly, urgent injunction suits are filed for matters such as:

Copyright Infringement

Movies are often in the news for copying concepts, stories, dialogues, music, etc., – basically copyright infringement.

For instance, in the Rishabh Shetty blockbuster ‘Kantara’, the song Varaha Roopam was held to be a plagiarised version of Navarasam, and the Kerala High Court issued an interim injunction, prohibiting the use of the controversial song in theatres as well as OTT and digital streaming platforms, citing prima facie violation of copyright laws.[3]

Previously, the Telangana High Court issued an injunction ordering to stall the release of the Amitabh Bachchan starrer “Jhund”[4]. The Court had found the story of “Jhund” to be similar to a previously registered movie script. However, the parties reached a compromise[5] and the movie was released after a delay of two years.

Obscenity of Content

In India, movies have often encountered litigation because of alleged obscenity. For instance, there was a plea to ban the Aamir Khan movie “PK” for promoting obscenity as the protagonist featured naked on a railway track with only a transistor protecting his modesty. While the dismissal order lacked explicit reasons, the media extensively covered the proceedings, which highlighted our society’s maturity, suggesting that petitioners should not be so sensitive about the elements depicted in a movie poster.[6]

Recently, CBFC asked the makers of the Shahrukh Khan starrer “Pathaan” to make changes after it courted controversy for the alleged obscene depiction of a dress donned by the lead-actress in one of the songs ‘Besharam Rang’ from the movie.[7]

The courts in India are also paying increased attention to streaming of obscene or vulgar content on OTT platforms. In one such instance, the Delhi High Court held that the makers of the TVF production “College Romance” were criminally liable for the obscene language used by the characters in the show and required the said content to be adequately edited and placed on YouTube after adequate classifications.[8]

In addition to the courts, the Ministry of Information & Broadcasting (MIB) has also taken conscious efforts to curtail the propagation of obscene, vulgar and abusive content under the garb of creative freedom. In fact, the MIB recently banned 18 OTT platforms, 10 applications, and 57 social media handles of OTT platforms for hosting ‘obscene and vulgar’ content.[9]

Misrepresentation of Historical Facts

Injunctions are now also being sought on the grounds of misrepresentation of historical facts and hurting religious sentiments. Recently, a suit for injunction was filed against the web series ‘The Railway Men: The Untold Story of Bhopal 1984’, which was to be released on the OTT platform Netflix.[10] The petitioners claimed that the series had incorrectly portrayed the events that caused the Bhopal Gas Tragedy.

In the past, movies such as Bajirao Mastani (where the descendants of the characters in the movie argued that historical facts have been altered in the movie)[11] and Jodhaa Akbar (where the film faced protests for misrepresenting the life of Jodhabai)[12], have faced hurdles prior to the release of the films. In such instances, it’s a common practice to see film makers add a disclaimer at the start of the film conveying that “the characters appearing in the works are fictitious and any resemblance to real person, living or dead is purely coincidental”.

Hurting of Religious and Communal Sentiments

Hurting religious or communal sentiments also gives rise to filing of cases seeking injunctions. A petition was filed against the Prabhas starrer “Adipurush”, seeking removal of certain scenes since they offend sentiments of the Hindu community by presenting the religious characters in “an inaccurate and inappropriate manner”. The Supreme Court in this matter held that “sometimes cinematic representations may not be an exact replica of the text and there has to be a little play in the same. The disclaimer in the film says as much”. Further, the court while dismissing the matter recognised that the CBFC had granted a certification and certain cuts were already made to the film. The court held that it should not become an appellate authority when a certificate of the censor board has been granted.[13]

Another movie “Padmaavat” faced bans from multiple states in India for hurting religious sentiments, however, it was later cleared for release by the Supreme Court.[14] However, the makers of the film were inter alia required by the CBFC to a) add a disclaimer that the film does not claim any historical accuracy and that the film in no manner subscribes to the practice of Sati or seeks to glorify it and b) change the name of the movie from “Padmavati” to “Padmaavat” to reflect that the film was based on the epic poem “Padmavat” by Malik Muhammad Jayasi, rather than it being a historical representation.[15]

Breach of confidentiality

Injunction for copyright violation[16] can also be sought for breach of confidentiality. Before a movie or show is made, actors, writers, directors, or producers may interact to discuss the script. However, such interactions are usually not put to paper in the form of an agreement. It is important that the parties consider signing a non-disclosure agreement, which has a confidentiality clause before sharing any details about the project. Further, the writer, director, actors of any content should be careful before sharing any details of the film or showing with the press since talent agreements require them to maintain confidentiality and share only such information that the producer/ studio allows them to.

Not so nice “Defamation” Suits

With the increasing popularity of docu-series, biopics and true crime genre, defamation cases have become increasingly common. For instance, for the web-series ‘Scoop,’ a suit was filed alleging defamation and infringement of personality rights.[17] For the movie, ‘Gangubai Kathiawadi’, a ban on the release of the film was sought, alleging that the film was defamatory and tarnished Gangubai Kathiawadi’s reputation and right to privacy.[18]

Issues arise when content is made without prior consent of individuals who are the subject matter of the content (or their heirs if the individual is no longer alive). Given that truth is a defence to litigation as well as defamation, content creators rely on information/ facts in the public domain, including books, to navigate their case. Disclaimers published as part of the content generally work.

However, securing permissions, rights or no objection certificates in advance from individuals or their heirs work better. Such deals could also require the individuals/ heirs to share additional facts about the person/ incident or provide assistance during filming and promotions.

“Don’t Know Who” John Doe Orders

There is an increasing trend to seek John Doe orders, colloquially known as the ‘Ashok Kumar Orders’ in India. In such cases, restraining orders are sought to stop (infringing) activities of “unknown persons”. This legal recourse is an effective tool in protecting one’s intellectual property rights and combating infringers, especially when content is being unauthorisedly shared over social media and streaming platforms.

For instance, with respect to the movie ‘Jawan’, crucial clips of the film and music were leaked online by unknown persons.[19] For the web-series, ‘Scam 1992: The Harshad Mehta Story’, people on social media platforms had resorted to unauthorisedly using parts of the series to promote their businesses on social media platforms.[20] John Doe Orders were granted in these matters to prevent content infringement. In fact, 92 websites were illegally streaming content from this online[21] show ‘Unstoppable’. In this case, a John Doe Order in the form of dynamic injunction was granted to prevent infringement of the show.

New Age Rights

With the rapid evolution of artificial intelligence (“AI”) technologies, celebrities are increasingly seeking legal protection of their personality rights, viz their name, likeness, voice, image, personality or any other aspect of their persona. In a recent suit, actor Anil Kapoor obtained an interim injunction from the Delhi High Court against the (mis) use of his personality rights.[22] The Court noted that the use of AI tools to generate content to tarnish a celebrity’s repute, and/ or is offensive and derogatory, leads to violation of their personality rights, and constitutes sufficient ground for grant of an injunction.

Looking into the future

Multiplicity of rights, with new technology advancements, and the realisation that rights and content exploitation is worth money, has highlighted the importance of not only the commercial aspects of a deal, but also taking care of underlying legal obligations and paperwork before planning, making and/ or releasing any content.

The trend is likely to continue with increasing awareness – each right can be monetised differently – and the industry becoming more professional and transactional in the years to come.

The media and litigation landscape in India is evolving. As we navigate this terrain, it becomes crucial to strike a balance between safeguarding freedom of expression, identifying different sets of rights, documenting them adequately and keeping up with the challenges that come with technological advancements. The need for creative and futuristic drafting of agreements to cater to issues caused on account of new technologies such as AI and exploitation of rights across different technologies is imperative.

*The Authors were assisted by Muazzam Nassir, Intern.