Dhanush-Nayanthara controversy and copyright law

Dhanush and Nayanthara. , Photo Credit: Special Arrangement

History has shown that copyright can be misused to suppress speech that does not conform to one’s views. The numerous takedown requests on platforms like YouTube demonstrate that this tactic is widely used by political parties, corporations, and individuals to silence opponents and critics. Although many of these actions are intentional, there is a widespread misconception of copyright law as a framework designed to protect the rights of copyright owners.

The copyright infringement suit initiated by South Indian actor and producer Dhanush against his colleague Nayanthara could fall into one of these categories: a deliberate attempt to threaten someone he dislikes or ignorance of the framework of copyright law. Action resulting from.

What is the Dhanush-Nayanthara controversy?

2015 movie Nanum Rowdy Paddy (“I’m also a troublemaker”) was directed by Vignesh Shivan, who married Nayanthara in 2022. The film has been credited with encouraging their union. It was produced by Dhanush’s company Wunderbar Films. When Netflix prepared to produce a biopic based on Nayanthara’s life, she expressed her desire to include excerpts from that film.

On 16 November, in a public letter addressed to Dhanush, Nayanthara wrote that she had sought permission from Dhanush to use these excerpts about two years ago, but was met with silence. As an alternative, Netflix et al. Nayanthara decided to use a short video clip, which Nayanthara claimed she had captured with her mobile phone during the making of the film, to be used in the biopic.

Dhanush responded to this experiment with a lawsuit.

How are films copyrighted?

Depending on one’s perspective – particularly on power and gender dynamics within India’s film industries – there are two sides available to take. Which party is a party depends on the answers to two questions: (i) What copyright in the work has been infringed and who is the copyright owner in that work?; (ii) Does the copyright owner have the right to completely control the use of a copyrighted work?

Copyright law treats a film as a mixture of different copyrightable components. So while copyright law places the copyright in a cinematographic product with its creator, not necessarily all copyrights relating to a film are held by the creator.

Thus it is important to find out which copyright work has been infringed by the video clipping. Information in the public domain (as of November 28, 2024) indicates that no part of the original cinematographic work has been reproduced. If no part of the original recording of the film is used, the use of the clipping is less likely to infringe the producer’s rights than a cinematographic film. This would also mean that one would have to carefully check the copyright status of other components included in the behind the scenes (BTS) footage, including the music.

Further, even if we assume that Dhanush owns the copyright of the entire work, it is not absolute rights. The rights given to copyright holders to control access to their work are balanced by providing society with certain rights to access that work. Section 52 of the Copyright Act 1957 embodies this fair balance of rights within the copyright system – and Indian courts have consistently held that uses falling within the scope of this section are not copyright infringement.

What is ‘fair behaviour’?

The concept of ‘fair dealing’ contained in section 52(1)(a) is relevant. ‘Proper behavior; This section broadly allows people to use a copyrighted work for certain purposes, as long as the use is ‘fair’. In determining whether a use was fair, the court may consider factors including the extent of the use of the copyrighted work and the context of the use.

In the present case, the clipping was used for Nayanthara’s biopic. Since an actress’s life is closely linked with her films, it may be deemed necessary to use short clippings from or relating to her films.

It is also relevant that a film producer may have contracted to control the BTS recording. But producers must show to the court contracts that prevent artists from creating or sharing BTS recordings, and courts must also examine whether they are legally valid contracts.

Courts need to take a stronger stance against unreasonable legal threats using copyright law, especially because copyright infringements are also subject to criminal remedies.

Arul George Scaria is Professor of Law at the National Law School of India University, Bengaluru.