Monday, January 04, 2010

The 3 Idiots Copyright Controversy: Whither the Moral Right of Attribution?

Venkatesan brought in the New Year at LAOT by highlighting a copyright controversy that recently broke out between the makers of India's most entertaining, yet thoughtful Bollywood flick of 2009 and the author from whose book the central plot was allegedly lifted; a movie that goes by the name of "3 Idiots", but does not have the faintest trace of idiocy in either its script or execution.

Clearly one of the best movies to have been released this year, it demonstrates yet again that meaningful "message laden" scripts sans any mind numbing dance, song or fight sequences have a fair shot at tasting box office success! Needless to state, a lot of the success of this particular movie owed itself to a brilliantly conceptualised storyline and an amazingly punchy script.

The author Chetan Bhagat claims that the attribution (or rather the lack of it) to his book in the movie has been rather "unfair". Having seen the movie ("3 Idiots") and the book ("5 Point Someone"), I'm quite sympathetic to Chetan's claims that he's been "unfairly" treated. And I also think he may have an arguable case under Indian copyright law, since his book input has not been adequately "attributed", but rather reduced to a paltry amount of 3-5%. Bhagat writes in his blog:

"Pre-release, the makers made press statements like the movie is only ‘very loosely’, ‘2%-5% inspired by the book’. After release, those who have read the book and seen the movie (and frankly, I think those are the only people who have the right to comment) find the film to be an adaptation of Five Point Someone. The setting, characters, plotline, dramatic twists and turns, one-liners, theme, message – almost all aspects that make up the story are from FPS. Yes, there are some changes, any adaptation requires that – but it is no way an original story.”

The Key Facts/Issues

1. Bhagat entered into a contract with the production house (Vinod Chopra Films Pvt Ltd), under which he assigned all rights in any audio visual format of the book or its adaptation to the production house.

2. As consideration, Bhagat was to be paid a certain sum of money (totaling about Rs 11 lakhs or so). The facts appear to indicate that he was paid this sum in full and Bhagat does not contest this in his blog post either. So this is not really about the money.

3. Bhagat was also promised credit in the film. Since this clause (Clause 4) is critical, I reproduce it below:

"It shall be obligatory on the part of the Producer to accord credit to the author in the rolling credits of any audio-visual moving image software (of any format or form in any media or medium) produced by the Producer in terms of the exercise and execution of the Rights granted as under:

“Based on The Novel

Five Point Someone

By

Chetan Bhagat”

This clause appears to have been "technically" complied with, as the credits right at the end of the film do mention the fact that the movie is based on the book by Bhagat in exactly the form that clause 4 requires. However, the placement of this credit was not prominent and appeared to be rather fleeting; I for one thoroughly missed it!

In his blog post, Bhagat indicates that even his mother missed it (since she loves him more than any of us do, we can safely assume she might have actually looked hard for it). Importantly, the script writer, Abhijit Joshi was credited right at the start of the movie.

In any case, since Bhagat did not specifically insist on any particular placement for the credit owed to him, it would appear that at least contractually, Vidhu Vinod Chopra and team did comply with the law. Even Bhagat seems to accept this technical legal compliance in his tweet. Though there is much to be said for the bargaining asymmetries between an individual author and a production powerhouse with ample financial and political muscle. So much for the freedom of contract.

Moral Rights and Lack of Attribution

4. Bhagat claims that in the pre-release publicity and even post the movie, the makers of the movie made statements to the effect that the movie was not really based on the book and that it was "original". Most damagingly perhaps, the makers claim that the movie was only based on the book to a paltry extent of 3-5% .

If what Bhagat states is true, he has a decent case on moral rights against the makers of the movie. Section 57 of the Indian copyright act vests every author with the right to insist that their works be attributed to them. And this right exists independent of the "economic" right to exploit the work. In essence, the section states that "..independently of the author's copyright and even after the assignment either wholly or partially of the said copyright, the author of a work shall have the right to claim the authorship of the work ... "

In other words, even if the economic rights are assigned away (and in this case, Bhagat assigned away his rights to any movie based on the book), the moral rights continue to vest in the author. The question now is: is it true that Bhagat's book only contributed 3-5% to the movie. Or was the movie based substantially on the book?

Having read the book (that has now reached some sort of a cult status in certain circles) and watched the movie, I personally think the copying has been rather significant. And not a mere 3-5%! However, I must also state that Abhijit Joshi, the script writer (along with Hirani) packed in some brilliant new scenes and sub-plots whilst adapting the book theme.

Therefore, what they created is also "original", unlike what Chetan claims. However, their originality does not detract from the fact that they have also, in the process, lifted a significant portion of the plot, characters etc from the book. Therefore, the end product (movie script) could be rightfully said to be a product of joint authorship, involving Chetan Bhagat, Abhijit and Rajkumar Hirani.

For those interested, I've discussed these aspects in more detail in a post over at SpicyIP. I had an interesting exchange with an anonymous commentator who questioned the need to have any protection for moral rights. In particular, he stated that "..the U.S. is one country which does not have moral rights and for good reason - these rights has a weak economic rationale."

I reproduce my quick and not so considered response, but hopefully this can serve as a starting point for engaging in a more meaningful discussion around the existence and extent of moral rights protection.

"Firstly, the US does protect moral rights to a limited extent, through VARA. Secondly, and more importantly, should we base all law making only on economic rationales. What about morality? Fairness? Justice? Shouldn't these be legitimate ends to be pursued by law and law making? Or should our lens be a predominant economic one, ala the US?

My reasons for supporting the moral right of attribution are to avoid the kind of unfairness that the Chetan Bhagat incident throws up. What the Chopra production house appears to be doing is to buy out the author and then completely negate the fact that he had anything to do at all with the creation!

Authors share a special relation to their creations--and many see it as an extension of their personality. And I just think its grossly unfair to let economic forces divorce them from their creations and obliterate their status as authors!

But all of the above arguments relate to the moral right to "paternity" or authorship. There is another moral right, albeit a more problematic one that often crops up in most of the case law i.e the moral right to integrity (to prevent any "unfair" treatment to the authors' work).

A recent article deals with some of the predominant rationales underlying such a moral right to integrity and ends up arguing against the need for any such moral right. However, it does not deal with the moral right to paternity or authorship. In fact, I am yet to find any compelling argument that persuades one against the need to have a moral right to paternity."

For those interested in a non legal take on this controversy, see this interesting piece by Vir Sanghvi, who sees this as an issue of "grace" (or lack thereof). He contrasts the rather harsh stand of the Vidhu Vinod Chopra production house with the more "graceful" stand of Danny Boyle's team who specifically went out of their way to acknowledge the role of Vikas Swarup, the author of the book on which the Oscar winning movie "Slumdog Millionaire" was based, although he wasn't "legally" mandated to do so.

One hopes that this controversy is "destined" to end "well", sans any legal expenses. And on that hopeful note, let me wish all of you a very happy New Year.

19 comments:

Abhinav Chandrachud said...

Thanks Shamnad, this is very informative. One quick question on moral rights and attribution [pardon my ignorance, but I know little of the subject]: how would moral rights work in the context of shadow written works? I would think that if an author were not capable of waiving his/her rights of authorship in a work, this wouldn't help the cause of shadow authors' contracts of assignment. If Celebrity X were certain that Author A would always be able to claim some day that he/she is the true author of the work that Celebrity X signs off on, that would tend to reduce the price that Author A can get for his shadow written work. I ask this since I wonder if the controversy is not a function of contract - by agreeing to a clause capable of "technical" compliance (and contracts are to be construed technically), has the author not waived all broader moral rights? [The clause could have said "prominent" credit must be given, but as you rightly point out, this is a function of bargaining positions] Unlike constitutional rights, aren't statutory rights capable of waiver?

Lalit S Chowdhary said...

If Disney's could give credit to Rudyard Kipling for "The Jungle Book" why can't Vidhuji not do the same. It is fairly simple ask from Chetan. I support his cause.

Rohit Sharma said...

Are you sure that Section 57 really refers to a situation like this?

I know very little about copyright law, but just reading the Section seems to suggest that it permits an author to claim authorship over a work even after having assigned his copyright in it.

In a situation like the present one, Bhagat's claim is for attribution of credit to his book, in terms of his assignment contract. He is not claiming authorship for the movie's script.

Section 57 appears to me to serve a different purpose. Under Section 18, once you assign your copyright in a work, the assignee becomes owner of the copyright. This obviously gives him rights to exploit the work to the extent permitted. Therefore, when the assignee becomes the owner of the copyright, a question would arise: Does the assignor have any claim left over the work? Section 57 appears to come into the picture in such a situation, and suggest that the assignor can still claim authorship, even if he cannot prevent economic exploitation of the work.

In the 3 idiots controversy, the dispute is whether the contract of assignment has been duly honoured or not, and not whether Bhagat is the author of 3 idiots or not. I'm sure Bhagat does not claim to be.

Pranav Sachdeva said...

I agree with the post...chetan's work should have been acknowledged up front in the movie instead at the end. But having read the book and seen the movie, I find both of them very different and Chetan's wrong when he claims that 70% of the film is based on his book.

Shamnad Basheer said...

Dear Abhinav,

Terrific query. Firstly, a contractual clause stipulating credits does not amount to a waiver of the moral right of paternity. It simply means there is a positive obligation to include name in the rolling credits--nothing more..nothing less. It does not give the producer the license to hold out to the world that there was no substantial contribution of Bhagat to the script..for that would amount to a violation of his right to rightful atttribution.

But had the producers expressly contracted for a "waiver of moral rights", one might argue this both ways. On the one hand, given factors such as the asymmetry in bargaining power between authors and publishers (in most cases), courts might read the moral rights protection clause as one embodying a strong "public policy". Consequently, any contract in contravention of such public policy is void. On the other hand, courts might also refuse to treat this as embodying a higher public policy-rather it is like any other normal legal right capable of being waived.

Shamnad Basheer said...

Dear Rohit,

If Bhagat contributed substantially to the 3 idiots script, he is treated as a "joint author" under the law. The argument therefore is that by denying his authorship (albeit "joint" status), the producers have violated his moral right to attribution.

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Talha said...

On a separate note, and on the intersection of law and literature, the battle between technical compliance of the law v/s compliance in spirit is not a new conflict. A number of commentators have commented specifically on this issue as it had arisen "The Merchant of Venice". (For instance http://www.jstor.org/pss/1228870)

Winnowed said...

Good article Shamnad. I have some sympathy for Bhagat, but somehow feel he ought to blame his lawyers (rather than V.V. Chopra) for not expressly stating in his contract with the producers how and where and in what font size his credit is to be shown on screen.

Douglas said...

Dear Shamnad,

Thanks for the informative post. You say that if Bhagat contributed something substantial to the script then he ought to be treated as a "joint author" under the law. The Indian Copyright Statute defines a work of joint authorship as the work produced by the 'collaboration' of two or more authors in which the contribution of one author is not distinct from the contribution of the other author or authors. Does this definition imply that, to constitute joint authorship, there must be a common design and a common intent to produce a particular work? The ordinary meaning of collaboration is people working together in an intersection of common goals. I believe that in England, joint authorship requires prior common design. I know that the Delhi High Court in the Najma Heptulla case had adopted the English position on joint authorship. The US Copyright statute is more direct in defining a joint work: "a work prepared by two or more authors with the 'intention' that their contributions be merged into inseparable or interdependent parts of a unitary whole." Therefore, substantial contributions to the movie 'The Autobiography of Malcom X' by Aalmuhammed did not make him a joint author in the case Aalmuhammed v. Lee because there was no prior intent or design to create a joint work. A similar authority in the context of a theater play is Thomson v. Larson. How does this play out in the context of the whole controversy? Can Mr. Bhagat be a 'joint author' of the movie script? Is common design or intent necessary to prove joint authorship? Should this prong be satisfied before looking at whether the script draws substantially from the book?

Rohit Sharma said...

Dear Shamnad,
My query was - Where does this "moral" right come from?

Section 57 relates to authorship. By Moral rights, do you mean claiming authorship? If yes, is that what Bhagat is claiming? that he is the Joint author? or does he merely want that sentence at the end of the credits to be placed more prominently?

Is there a difference between the two?

Shamnad Basheer said...

Excellent query Douglas,

I would think that the very existence of an express contract for "attribution" and payment itself signals the intention of the film-makers to build on the underlying book by Bhagat. Although the parties did not sit at one table and complete the entire process of "adaptation", it's clear that the final piece of work embodies both sets of contributions. One might argue that both parties anticipated and bargained for this in their contract. Our Indian section is broad enough to encompass this as a work of joint authorship.

Also, a close reading of Heptullah would suggest that Justice Kirpal stretched out the concept of "joint authorship" a bit wider than prevailing British case law then.

You're right that the US may have higher standards and norms to determine joint authorship--but given their general anathema to "moral rights", I really wouldn't look there for guidance in relation to attribution. And I really hope an Indian court doesn't either.

Incidentally, the Malcolm X co-authorship dispute seems to have hinged more on the issue of whether the contributions by Almuhammad were "copyrightable" elements at all in the first place. He played more the role of a consultant than an "author".

I haven't read Thomas vs Larson, but hope to do so soon. Thanks for pointing me to some of these finer nuances.

Shamnad Basheer said...

@ Vinod and Talha: Thanks for the comments and pointers.

@Rohit: I hope Douglas' query and my response thereto clarifies your doubt as well.

jo said...

Mr. Shamshad, I am a new student to copyright laws in my MBA course and am making a project on 3 idiots controversy. I got great insights from ur article. I hope you would not mind if i use your article for my project :-). I will also mention this link and your name as a source in my college report in the acknowlegement

Shamnad Basheer said...

Sure Jo,

Would love to see your project when you're done.

Shamnad Basheer said...

Sure Jo,

Would love to see your project when you're done.