- Anamika Jha
- 11 November 2020
Avoid this common error in ‘work for hire arrangement’ in the film production
Legal aspects of commissioned work/work for hire arrangement
As a copyright lawyer working in the film industry, I frequently come across writers as well as producers. I have found both confused with the position of law regarding commissioned work/work for hire arrangement. I have observed they sometimes make incorrect legal presumptions. Consequently, they may face avoidable legal complications. Let me take the most common scenario to explain this situation.
Mr. Raj has a fantastic story idea. He approaches a producer, Ms. Simran, with his story idea. She likes the concept and decides to produce a film on the same. She asks Mr. Raj to write the script for a film. They verbally decided a total consideration of Rupees Ten Lakhs only (Rs.10,00,000/-) for writing story, screenplay, and dialogue. She gladly paid him a token amount of Rupees One Lakh only. Raj wrote the script as shared the same with Simran. She gave some feedback. Raj made changes in the script as her feedback. However, even after a year, Simran is not starting pre-production activities. She is also not paying him any money. He writes her emails regarding further payment. She replies that she shall make payment at the time of shooting (which only God knows when will start!). Disappointedly, Raj says that he shall approach other producers as neither she is making the film and nor she is making the full payment. Simran says that Raj cannot approach to other producers as he has written the script at her instruction under the “work for hire/commissioned work” arrangement. Hence, she is the owner of the Script. Excuse me for spoiling the romantic story of Raj and Simran of DDLJ! ;)
Now, the question arises that who is the owner of the script as per Copyright Act 1957 (hereinafter referred as Act)? Does the arrangement between Raj and Simran amount to work for hire arrangement under Act? Let see what our law has to say. As per Section 17 of the Act, an author of a work is the first owner of the same. However, this general rule is subject to a few exceptions. There are three most common exceptions (i) an artistic, literary, and dramatic work created by an employee during employment (ii) a work (photograph, or a painting or portrait, or an engraving or a cinematograph film made) made by one person at the instance of another person for valuable consideration. (iii) The employer shall be the owner in case any work is made under the contract of service where the above two exceptions are not applicable. Now, let’s apply these exceptions in our illustration.
A producer can be the owner of the work only if the writer has written the script under a contract of service. We need to examine if there is an employer-employee relationship between the parties. For example, a production house is the owner of a script written by an in-house writer during the course of employment under the contract of service. However, the production house cannot be the owner of any work created by the in-house if she has developed that work outside her office hour (independent of the production house). In sum, we need to look at two questions in such a scenario. Whether the work has been created during the course of employment? Whether there is a contract of service (to establish an employer-employee relationship between the parties)? If the answer to both the questions is affirmative, then we can conclude that the employer is the owner of the work. When we apply these questions in our Raj and Simran illustration, we find the answer is negative. Raj is not an employee of Simran. There is no such contract between them. Hence, Simran cannot be the owner of the work under Section 17 (a) and (c).
The legal position of commissioned work arrangement in India is a bit complicated. Section 17 (b) of the Copyright Act 1957 deals with commissioned work/work for hire arrangement. However, unlike Section 17 (a), the exception under Section 17 (b) applies to only specific kinds of copyright work (photograph, painting/portrait, an engraving, a cinematograph film) made at the instance of a person at the payment of valuable consideration. For example, Mr. A can successfully claim ownership if B takes a photograph or make a painting/portrait or engraving or cinematographic film at her instance (Of course! at the payment of valuable consideration!). Please note that Section 17 (b) is limited to photograph, painting, engraving, and cinematographic film. Hence, this Section shall not apply to any other literary, artistic, musical, or sound recording work. Therefore, a person cannot claim automatic ownership of a copyrighted work (excluding photograph, painting, engraving, cinematographic film) made at her instance without having the work for hire agreement executed between the parties. Producers claim ownership if they have approached the writer with a concept and requested the writer to develop the same after making some token amount. However, this is an incorrect position of law. Please note that just because the Producer has made some payments to the writer, it doesn't make it automatically a work made for hire arrangement. Far from it, several criteria are required to be established to claim ownership over a Copyright work. There must be a contract for the creation based on the 'work for hire' arrangement. The contract should unambiguously state that the parties are agreeing that the work is a work made for hire/Commissioned work. The language must be explicit to the intent. Also, it must be in writing and signed by the author of the Copyright work agreeing to the conditions. At least these elements must be in every Copyright work made for hire agreement. On the contrary, in all cases, the copyright starts and stays with the author/writer. However, writer must ask for an unambiguous agreement to avoid any future complications and confusion.
Hence, coming to our illustration, Simran cannot claim ownership merely she has made payments to Raj to develop the story into the script of a film in the absence of a work for hire agreement between the parties.
Please note that this article is my interpretation of Section 17 (b) of the Copyright Act 1957 based on a mere reading of the Section. I have not been able to find any judgment with the clear cut interpretation of Section 17 (b) of the Copyright Act 1957. I shall welcome any counter views from my readers specially from fellow Copyright/Media entertainment lawyer.
Legal Officer, SWA | Anamika Jha's area of specialization is Intellectual Property Law including Copyright Law and Media & Entertainment Law, while her passion is serving the Creators. She has both litigation and Corporate experience. Blog link: https://www.attorneyforcreators.com/