Columbia Journalism Review teaches copyright, privacy, and defamation basics in legal primer series

Many journalists have an arm’s length relationship with the law. Unless they are a legal beat writer, reporters seek to avoid the legal realm during their career. This is partly because if a journalist is involved in litigation, it usually finds itself on the right side of the “v.” defending against a lawsuit.

But becoming familiar with some legal concepts could reduce the risk of having to deal with the financial burdens and frustrations of fighting a suit down the road.

Jonathan Peters (@jonathanwpeters), a media law attorney and the Columbia Journalism Review’s press freedom correspondent, recently published an informative three-part series outlining some common legal principles journalists should to know. In a simple, easy-to-understand format, Peters walks journalists through some legal concepts and provides quick answers for commonly asked questions.

In part one of the trifecta, called “Can I use that?,” Peters explains copyright law, including how copyrights are obtained and what constitutes fair use. In his second article, “Can I do that?,” the author explores recording and privacy concerns journalists often confront. And finally, Peters caps off his series with “Can I say that?,” which details the ins and outs of defamation.

I recommend the articles for both journalists and lawyers alike to gain insight into fundamental media law topics in a comprehensive and digestible manner.

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The “Indianization” of U.S. films: How Bollywood borrows from Hollywood and why it is unlikely to stop

INTRODUCTION 

Contrary to the belief of many Americans, Hollywood is not the world’s only entertainment mecca. More than 8,000 miles away from Hollywood sits Bollywood, India’s version of the American film-making capital based in Mumbai, India. Bollywood produces at least 1,000 films annually, and those films reach over three billion viewers each year – more than any other film industry in the word.

Although the two entertainment giants are located across the world from each other, films created in Hollywood and Bollywood often share similar plots and characters. Numerous executives in the Bollywood film industry admit that many Bollywood films are inspired by iconic Hollywood films.  Blockbuster Hollywood films such as “The Godfather,” “Mrs. Doubtfire,” and “Silence of the Lambs” have been remade into Bollywood films using a process known as “Indianization.”

Through “Indianization,” Bollywood studios adopt an American plot to serve as a baseline for an Indian version of the same film but often broaden the film by adding musical performances and unique Indian culture references. In 2008, 46 percent of films produced in Bollywood were remakes of Hollywood films.[1] Only two of those were authorized screenplays. Even with the extensive amount of Bollywood films essentially mirroring those of Hollywood, there has been limited copyright lawsuits brought by Hollywood production studios against Bollywood production studios.

This begs various questions: Why have Hollywood studios exercise restrain in suing Bollywood studios for copyright infringement? What does India’s copyright law say about the legitimacy of this practice? What have been the results of the few legal actions taken by Hollywood? What are the defenses raised by Indian studios? And what is the future of Bollywood’s relationship with Hollywood?

HollywoodMumbai

BOLLYWOOD’S PERSPECTIVE

Many Bollywood filmmakers are candid about using American films as launching points for their own films. Bollywood director Vikram Bhatt told “The Hindu” magazine:

“I would rather trust the process of reverse engineering rather than doing something indigenous. Financially, I would be more secure knowing that a particular piece of work has already done well at the box office.”[2]

Bollywood filmmakers often receive immense pressure to produce a substantial amount of films in an abbreviated period of time. Because of the popularity of Bollywood films, quantity becomes more important than quality. Thus, Bollywood filmmakers look to America for ideas.

Legal scholars explain Bollywood’s relaxed perspective on copyright matters by pointing out cultural differences between the two countries. Some scholars say Eastern cultures such as India regard copying works as a form of flattery and recognition, while most Western cultures such as the United States view copying as misappropriation or theft. The cultural attitude in India is that “borrowing cinema plotlines, musical tunes, or even patented technologies is not so egregious a violation as to warrant legal sanction.”[3] For example, Mahesh Bhatt, a Bollywood director, explained to “The Hindu” magazine:

“It’s only entertainment, for God’s sake, not some high art to be worshipped with incense sticks and hymns. Films aren’t about creativity, originality or vision. They are about entertaining audiences across the board.”[4]

Bollywood filmmakers claim their films are merely “inspired” by Hollywood films and become unique films after going through the “Indianization” process. According to this argument, although some American ideas and plotlines may be used in Bollywood films, independent expression is formed when Bollywood “Indianizes” a film. During the film’s development, Bollywood studios create new expression and broaden the film’s American counterpart by addressing different societal concerns, adding song and dance sequences, and widening the scope of the film. For example, instead of an Indian film specifically being a comedy, drama, musical, or action work, an Indian film will typically contain all of these genres.

Additionally, music is typically less of an emphasis in Hollywood films. An average 40 minutes of a Bollywood film is devoted to song sequences, and music is often the centerpieces of a Bollywood film. Bollywood filmmakers believe these measures taken to transform or “Indianize” films are tantamount to independent creative expression and therefore do not infringe U.S. copyrights.

On the other hand, American filmmakers argue Bollywood films would be meaningless without the scenes and plot lines copied from Hollywood films. American filmmakers believe the Bollywood films would not stand on their own without the substance provided by Hollywood filmmakers.

CURRENT LAW

Both the United States and India are members of the Berne Convention. They are also members of the Word Trade Organization (WTO) and are bound by the Trade-Related Aspects of Intellectual Property Rights Agreement (TRIPS). TRIPS grants copyright protection to expression but not to “ideas, procedures, methods of operation or mathematical concepts.” The Berne Convention and TRIPS recognize exclusive rights of authors of cinematographic works to authorize reproductions and derivative works. The India Copyright Act of 1975 reflects these exclusive rights.[5] Copyright owners in India enjoy the exclusive rights to reproduce, perform, translate, adapt, and issue copies of their protected works.

The standard for copyright infringement in India is similar to the one used in the United States. In Anand v. Deluxe Film, the Supreme Court of India declared an infringement claim is actionable if the copy is substantial and material. To determine copyright violations, the India Supreme Court asks if:

“[T]he reader, spectator, or viewer after having read or seen both the works is clearly of the opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the original.”[6]

India’s courts recognize if similarities between the works are coincidental or contain enough different elements, then infringement has not occurred.

The difference between an idea and an expression is at the center of the debate of whether Bollywood is infringing American copyrighted works. The Supreme Court of India has held “an idea . . . cannot be the subject matter of copyright.”[7] The more specific an idea becomes, the more it is likely to be deemed an expression. The belief is one person should not hold a monopoly over a common idea or typical film scenes, but a more detailed storyline is protected as expression. With no bright line between ideas and expression, each court ultimately decides whether a story line is deemed an idea or expression.

LITIGATION

In the recent years, three reasons deterred Hollywood from pursing litigation against Bollywood: Bollywood’s limited profitability; India’s developing economy; and distinct audiences between the two nations. But lately these motivations are not as strong as Bollywood films are becoming more lucrative, India’s economy has expanded, and their audiences have begun overlapping.

In 2007, Sony sent cease-and-desist letters to K Sera Sera Entertainment, the creator of the film “Partner.” “Partner,” a story about a man consulting a love expert for advice on how to woo a woman, bears a resemblance to Sony’s “Hitch,” which was released in America in 2005. The threat garnered headlines across the world, but Sony did not pursue further legal action. Other Hollywood studios have sent cease-and-desist letters to Bollywood studios seeking to remake Hollywood films like “Ghostbusters,” “Jerry Maguire,” “The Departed,” and “The Hangover.” Ultimately, Bollywood produced these remakes without any legal consequences.

In 2009, Twentieth Century Fox filed suit for copyright infringement against Bollywood production company BR Films in the Bombay High Court of India. This was the first time a Hollywood film studio sued a Bollywood filmmaker for remaking its film. Twentieth Century Fox claimed BR Films’ upcoming film, “Banda Yeh Bindaas Hai,” infringed its copyright in the film “My Cousin Vinny.” Twentieth Century Fox sought $1.4 million in damages. The Bombay High Court issued a preliminary injunction while the lawsuit progressed, but both parties settled for $200,000 before the court heard the case.

Soon after, in 2010, Twentieth Century Fox sued the Bollywood production company Sohail Maklai Entertainment for infringing on the copyright of the film “Phone Booth” when it released “Knock Out.”[8] “Phone Booth” involved a sniper holding a cheating male publicist hostage in a phone booth. The sniper threatened to kill the hostage if he did not confess his infidelity. “Knock Out” is also based on a sniper holding a cheating man hostage in a phone both, but it added a political conspiracy plot and song-and-dance sequences.

PhoneBooth

Under an objective person test, the Bombay High Court determined “Knock Out” infringed “Phone Booth” under the Indian Copyright Act. The court found:

“[T]here is little doubt that a person seeing both the films at different times would come to the unmistakable conclusion that the Defendants film is a copy of [Phone Booth].”

Although the court acknowledged there were some differences in the two films, the court emphasized “a caller in a phone booth held hostage by a sniper on a roof” was a crucial piece of the film. The court awarded Twentieth Century injunctive relief until Sohail Entertainment paid $340,000 in monetary damages. This case was the first time an Indian court found a Bollywood film infringing a Hollywood film.

ANALYSIS

The litigation over “Phone Booth” is a rare example of Hollywood successfully pursuing legal action against Bollywood. But even after the “Photo Booth” case demonstrated that infringement could be found, Hollywood did not bring a bevy of new lawsuits against Bollywood for at least three reasons. First, some Bollywood producers have begun obtaining the rights to remake Hollywood films. For example, Bollywood producers obtained the rights from Warner Brothers to remake “Wedding Crashers.” This was the first time a Bollywood production company legally acquired rights to remake a Hollywood film. Even with this newfound compromise between Hollywood and Bollywood, the majority of Bollywood producers still remake Hollywood films without permission.

Second, it is still difficult to prove infringement in Indian courts. Because of the ingrained cultural differences between the value of copyrights in the two countries and changes made to the films through the “Indianization” process, it is tough for Hollywood producers to prove to an Indian judge that a substantial amount of copyrightable material was taken from the Hollywood film. Hollywood’s best argument to an Indian court, as shown by the “Phone Booth” case, is that expressive elements of a Hollywood film, particularly character development and plot details, were copied in a Bollywood film and are “substantial similar.” The dearth of Indian case law harmonizing the idea versus expression doctrine leaves much discretion to Indian courts.

The third reason Hollywood has not vigorously sued Bollywood is because Hollywood has recently been investing in the Bollywood film industry. For example, Sony threatened but did not ultimately sue K Sera Sera for its remake of Sony’s “Hitch.” Many believe Sony did not sue because Sony wanted to maintain amicable relations with Indian producers. Sony now invests in many Bollywood films. Other Hollywood studios are also collaborating and funding Bollywood studios, and as demonstrated above, some Hollywood studios have been granting permission to Bollywood studios to exploit certain rights. Suing Bollywood studios would rupture relationships Hollywood is attempting to forge with the rising valuable market of India.

Although the “Phone Booth” case demonstrated Hollywood filmmakers can successful sue Bollywood filmmakers for copyright infringement, a flood of lawsuits is unlikely to follow because of the unclear law and the amicable relationships being forged between Hollywood and Bollywood.

Flags

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[1] The Bollywood List of Plagiarism, Remakes and Inspirations, Manishwa.com (Jan. 11, 2009), http://www.manishwa.com/2009/01/the-bollywood-list-of-plagiarism-remakes-and-inspirations-2008.

[2] Kanchana Banerjee, Cloning Hollywood, Hindu (Aug. 3, 2003), http://www.hindu.com/thehindu/mag/2003/08/03/stories/2003080300090400.htm.

[3] Jishnu Guha, Time for India’s Intellectual Property Regime To Grow Up, 13 Cardozo J. Int’l & Comp. L. 225, 247 (2005).

[4] Kanchana Banerjee, Cloning Hollywood, Hindu (Aug. 3, 2003), http://www.hindu.com/thehindu/mag/2003/08/03/stories/2003080300090400.htm.

[5] The Copyright Act, No. 14 of 1957, India Code (2011), available at http://indiacode.nic.in.

[6] Id.

[7] Anand v. Deluxe Film, A.I.R. 1978 S.C. 1613 (India).

[8] Twentieth Century for Film Corp. v. Sohail Maklai Entm’t Pvt. Ltd., NM-2847 (Bombay H.C. 2010),available at http://bombayhighcourt.nic.in/data/original/2010/NMS284710141010.pdf.

ADDITIONAL SOURCES

Arjun Shah, Is Bollywood Unlawfully Copyright Hollywood? Why? What Has Benn Done About It? And How Can It Be Stopped?, 26 Emory Int’l L. Rev. 449, 456 (2012).

Madhavi Sunder, Bollywood/Hollywood, 12 Theoretical Inq. L. 275, 298 (2011).

Rachana Desai, Copyright Infringement in the Indian Film Industry, 7 Vand. J. Ent. L & Prac. 259 (2005).

William P. Alford, To Steal a Book is an Elegant Offense: Intellectual Property Law In Chinese Civilization (Stanford University Press 1995).

Hariqbal Basi, Indianizing Hollywood: The Debate Over Copyright Infringement By Bollywood, 18 UCLA Ent. L. Rev. 33 (2011).

Jishnu Guha, Time for India’s Intellectual Property Regime To Grow Up, 13 Cardozo J. Int’l & Comp. L. 225, 247 (2005).

Kanchana Banerjee, Cloning Hollywood, Hindu (Aug. 3, 2003), http://www.hindu.com/thehindu/mag/2003/08/03/stories/2003080300090400.htm.

The Bollywood List of Plagiarism, Remakes and Inspirations, Manishwa.com (Jan. 11, 2009), http://www.manishwa.com/2009/01/the-bollywood-list-of-plagiarism-remakes-and-inspirations-2008.

R.G. Anand v. Delux Films 4 S.C.C. 118 (India S.C. 1978).

Twentieth Century for Film Corp. v. Sohail Maklai Entm’t Pvt. Ltd., NM-2847 (Bombay H.C. 2010), available at http://bombayhighcourt.nic.in/data/original/2010/NMS284710141010.pdf.

The Copyright Act, No. 14 of 1957, India Code (2011), available at http://indiacode.nic.in.

Ninth Circuit to hear Garcia v. Google, Inc. en banc; Will reconsider Garcia’s copyright interest in “Innocence of Muslims” film

The copyright community has been anticipating what was made official today—the Ninth Circuit will review en banc its July decision in Garcia v. Google, Inc.  Chief Judge Kozinski and 10 other Ninth Circuit judges randomly chosen will reconsider its decision granting a preliminary injunction against Google.

Facts

An anti-Islamic film “Innocence of Muslims” appeared on YouTube featuring a five-second clip of Cindy Garcia. Garcia’s performance was used in “Innocence of Muslims” even though she only consented to be in an Arabian adventure film “Desert Warrior.” “Innocence of Muslims” garnered vast negative attention and ultimately resulted in threats to Garcia. Garcia then asked Google to take down the film on YouTube under the Digital Millennium Copyright Act (DMCA). When Google did not remove “Innocence of Muslims” from YouTube, Garcia sued Google for copyright infringement.

Courts

The district court denied her motion for preliminary injunction against Google because the court found she lacked a copyright interest in the film. Garcia appealed the case, and the Ninth Circuit Court of Appeals granted a preliminary injunction against Google. The Ninth Circuit held that Garcia’s performance contained the minimal creativity to be copyrightable, suggesting she had a “performance copyright.” Judge Kozinksi wrote:

“[J]ust because Garcia isn’t a joint author of ‘Innocence of Muslims’ doesn’t mean she doesn’t have a copyright interest in her own performance within the film.”

Five months later, the Ninth Circuit amended its Garcia opinion. The Ninth Circuit’s revised opinion said that the district court could find that Garcia is not entitled to copyright in her performance because the U.S. Copyright Office rejected Garcia’s attempt to register a copyright interest in her “Innocence of Muslims” appearance. At the same time, the revised opinion did not alter the court’s discussion of Garcia’s “performance copyright,” and the injunction on the film remained.

Today’s news of an en banc review shows that the Garcia saga is far from over. Now, the Ninth Circuit is set to discuss Garcia’s copyright interest in the film and determine if the injunction against YouTube/Google should remain.

New York Federal Judge: Online music service Grooveshark liable for copyright infringement

Following in the footsteps of Napster and LimeWire, another online music service was hit with a copyright infringement judgment Monday. Judge Thomas P. Griesa of the United States District Court in Manhattan granted summary judgement in favor of the plaintiffs, three record companies, finding that Grooveshark was liable for copyright infringement, violating the plaintiffs’ performance rights under Sec. 106 of the Copyright Act.  Judge Griesa wrote that the illegal uploading of Grooveshark’s own employees and officers of nearly 6,000 songs led to the finding of infringement.

For more on the Grooveshark case, check out Ben Sisario’s article in The New York Times.