Authored By: Arya Verma
National Law University Delhi
Introduction
The present media and entertainment industry is extremely reliant on a creative process and intangible assets like ideas, expressions, brands and personalities Ipso-facto these are all covered by Intellectual Property Rights (IPR).[2] In our digital era the content of a web series on OTT, a reality show, a video game, social media influencers post etc. can be basically considered as the possible subject matter of IP law. Thus, with the rapid development of technology and easy global access to creative content, the issues of copyright, trademarks, moral rights, personality rights, and digital piracy law have become more and more complicated.[3]
In the above framework of laws copyright is still the foundation of the creative industry. The situation in India sees the interaction between creators, producers, digital platforms and audiences still changing and thus challenging the traditional understanding of ownership and control. Courts focus on copyright enforcement with the help of the principle that if there is a right, there should also be a remedy resulting in authors and rights holders being sufficiently protected. At the same time, public interest and access to knowledge justify the existence of several exceptions such as fair dealing, news reporting, parody and educational use. So, the core issue is to find a balance protect the owners’ economic and moral rights on one side and innovation, cultural participation and freedom of expression on the other. The paper attempts to delve into the complex relationship of the Indian media and entertainment industry with the intellectual property rights framework along with a comparative study of the legal systems of the US and the EU.
The Centrality of Copyright in the Entertainment Industry
Copyright law in India primarily revolves around the Copyright Act 1957 which is the main regulatory framework covering media and entertainment works. Section 13 of the law identifies the types of works protected as original literary, dramatic, musical and artistic works, cinematograph films and sound recordings.[4]
A cinematograph film is therefore a collection of various rights related to the different elements of the film such as the script, dialogues, music score, dance, posters, logos and promotional materials.[5] The Copyright (Amendment) Act 2012 made fundamental changes to Sections 18 and 19 that used to confine authors of literary or musical works incorporated in cinematograph films to the right of royalties on only one medium (theatrical). The authors have a nonerodable royalty right that they share equally with the assignor for the exploitation beyond theatrical release and includes digital and online usage which is the main thing in the current streaming era. Authors and composers of lyrics had mostly been paid a one-time lump sum under the old industry practice which has now been legally corrected.
In an old case Indian Performing Right Society Ltd. v. Eastern Indian Motion Picture Association (1977)[6], the Supreme Court held that the full copyright in a film changes hands to the producers upon its incorporation. However, authors of the literary and musical works in the film have the right to grant licences for their public performances unless they have assigned the rights to the producers. Thus, the 2012 Act is a motion towards a fair return for authors who if not properly remunerated might just as well be considered the holders of unauthorized copies in the scenario of global streaming distribution.
This framework reflects the principle that a person who does through another does by himself whereby production houses and OTT platforms enter into thorough work for hire contracts with writers, composers and cinematographers only that they are still entitled to non-waivable royalties and the moral rights of paternity and integrity under Sections 57 and 38B.[7]
Between Creativity and Infringement: Transformative Uses under the Fair Dealing Framework
Unlike the broader fair use doctrine in the US, Indian legislation under Section 52 limits fair dealing to various enumerated purposes such as private use, criticism, review and reporting of current events etc. Nevertheless, Indian courts have gone for the pragmatic understanding of the media’s reality. The example that the author mentions is a brief excerpt of a song or a film that the media uses in the coverage of news or a review, a parody program may be considered as fair dealing provided that such use does not substitute the original work and no excessive commercial harm is caused.
On the other hand, U.S. courts such as the one in Campbell v. Acuff-Rose Music Inc.[8], have recognized a rather wide margin for parody and other transformative uses thus granting media creators a considerable freedom of expression. According to the EUs InfoSoc Directive the Member States are allowed and to some extent obliged to give effect to exceptions for quotation, criticism, review and caricature including parody.[9] Hence the final decision rests with each national government as to how these provisions will be implemented.
There is a gradual judicial move in India toward a balanced-user-friendly interpretation of fair dealing. Nevertheless, the legislative provisions under Section 52 of the Copyright Act 1957 as amended in 2012 still put somewhat tight limitations on the matter.
Brand Identity and Character Merchandising: The Strategic Role of Trademark Law
The Trade Marks Act 1999 provisions have a significant role in media and entertainment as it basically helps in securing film titles, channel names, production house logos, characters and slogans.[10] Trademark law now where a franchise like Baahubali or KGF is sprawling from the screen into merchandise, games, theme parks etc., is one of the tools used for brand saving and for avoiding confusion of the consumer. Indian courts have acknowledged that the title of the motion picture especially of the popular films or series may acquire novelty and can be registered as trademarks.[11] Misuse of a mark which is confusingly similar may lead to infringement and passing off and the principal no one should be enriched by the loss of another may be applied.
One of the major trends in retail right now is character merchandising which is basically using fictional characters from comic books, cartoon series or even OTT platform personas as strong brand assets. India not having any specialized legislation for character rights revolves its approach around the use of copyright, trademark and passing-off protections in combination. However, the United States has a far more advanced system which includes character copyright, trade dress and also protection of the visual likeness and personality aspects besides name only.
From Stardom to Screens: Celebrity Image, Social Media and the Law of Personality Rights
Personality rights which are sometimes called publicity rights have become very important these days because of influencers and promotions that use celebrities. They basically give an individual the right to prevent the use of their name, image, voice or likeness for commercial purposes without their consent. Personality rights per-se have not been codified into Indian law. However, courts have granted protection by interpreting Article 21 of the Constitution that deals with the right to privacy and dignity. They have also held that personality rights violations can be various torts and delicts like passing off and misappropriation.
In the case of D.M. Entertainment Pvt. Ltd. v. Baby Gift House (2004)[12] the Delhi High Court held in favour of the plaintiff for violation of personality rights and passing off by the unauthorized use of Indian pop singer Daler Mehndi’s image and music in the form of imported dolls that looked like him and played his songs. Lately, the Indian judiciary has come forward to protect commercially the personalities of film stars and sports figures to the hilt by granting injunctions against unauthorized commercials deepfakes and look alike endorsements based on litigation involving celebrities such as Aishwarya Rai Bachchan, Amitabh Bachchan and Anil Kapoor.
The United States essentially provides the method for publicity rights to be recognized globally through the enactment of different state laws and cases like Haelan Laboratories v. Topps Chewing Gum (1953)[13] which puts great emphasis on the fact that a celebrity’s image carries a separate commercial value. The European Union tries to strike a balance between the right of publicity and data protection as well as the freedom of expression mainly in the GDPR[14] provisions and the case law of the European Court of Human Rights. India too seems to be heading the same way that is starting to regulate publicity rights although with more emphasis on the possible threats from AI-generated deepfake and virtual influencers.
The principle of an injury is not done to a willing person also applies to celebrities who, when sharing bits of their lives on social media and endorsing brands are in a way giving their consent to the possibility of such situations occurring. However, the permission for one-time use cannot be taken as consenting to the unauthorized and unrelated commercial exploitation. Hence, it is very crucial that the endorsement & licensing agreements are duly drafted.
Streaming, Security and Infringement: OTT Platforms and the Law on Digital Piracy
Digitalization has not only transformed how individuals consume content but has also intensified the risk of online piracy. The act of Cam recording in theatres, illegal streaming, the use of Telegram channels and torrents lead to considerable financial losses for producers and distributors. The principle that no one should profit from their own wrongdoing serves as the foundation for anti-piracy measures.[15] Indian courts have increasingly supported the implementation of dynamic injunctions and John Doe orders (Ashok Kumar orders) to take action against infringing websites even before a film’s release.[16] For example in several cases involving high-budget films the courts have permitted rights holders to send notifications to internet service providers directing them to block access to URLs that are unlawfully hosting copyrighted materials.
Digital Millennium
In the United States the Digital Millennium Copyright Act (DMCA) is the main law governing the enforcement of online copyright and platform safe harbour through its structured mechanism of notice and takedown and it also prohibits circumvention of technological protection measures.[17]
In the European Union Article 17 of the Directive on Copyright in the Digital Single Market considerably increases the obligations of online content sharing service providers by delineating certain platforms as communicating works to the public directly and consequently requiring them to get licences remove notified infringing content and implement stay down measures at the same time preserving user’s lawful uses such as quotation, criticism, review, parody and pastiche.
On the other hand, India hasn’t yet enacted a floor level overhaul similar to the DMCA or the EU’s CDSM Directive and it still mainly depends on the safe harbour provisions of Section 79 of the Information Technology Act 2000 and the due-diligence based intermediary guidelines which provide for immunity from liability on the condition of removing the unlawful or infringing third-party content in a timely manner upon knowledge or notification.[18]
Within this setup over the top (OTT) streaming platforms like Netflix, Amazon Prime Video, Disney+ Hotstar and major regional services generally organize their business models around exclusive licensing and assignment of rights utilizing digital rights management (DRM) technologies and detailed content acquisition agreements to secure and consolidate their intellectual property portfolios in multiple territories.
Strengthening Intellectual Property Protection: Reform, Awareness and Ethical Responsibility
Notwithstanding India’s strong statutory IPR framework a number of issues remain especially concerning the extremely low level of awareness among small creators, local artists and independent filmmakers. Often these content producers on platforms such as YouTube and Instagram violate copyright infringements without being aware of it as they re-use music clips or images without fully understanding the licensing requirements. At the same time Section 52 takedown notices of the Copyright Act are also being abused by rights holders to silence criticism or parody which in turn raises issues with Article 19(1)(a) (freedom of speech and expression) of the Constitution.[19]
Emerging Issues
How India’s media and entertainment law performs in the future will largely depend on how it handles the following challenges:
AI Generated Works: Debate about authorship and originality continues while simultaneously rights in such content may be either granted or denied.
Virtual Celebrities and Deepfakes: A change in the rights of personalities and privacy will be necessary as people are getting their likeness and voices changed through AI in an unauthorized way.
Metaverse Experiences: IP difficulties may be encountered in hybridized story forms where boundaries between movies, gaming and live performances are almost non-existent.
To manage the changing and complicated situations in the Indian media and entertainment sector, courts and lawmakers may have to rely more and more on traditional equitable principles such as equity follows the law as well as those based on good faith and morals. At the same time, they should be making the necessary targeted changes in laws to ensure that legal protections are in line with technological realities. A close cooperation between industry practices, self-regulatory mechanisms like those for OTT platforms under the Information Technology Rules 2021[20] and legal frameworks is not only something that can be done but is at the same time very necessary if we want to have a copyright enforcement that is both fair and does not hinder innovation.
Conclusion
Media entertainment and intellectual property rights have graduated from their niche status to become the foundation of India’s rapidly growing creative economy. The creative economy is expected to exceed $100 billion by 2030 through activities like films, music, OTT platforms, sports broadcasting, reality TV and influencer marketing. Legal tools such as copyrights, trademarks and personality rights are the basic framework that has made this boom possible the growth has been greatly assisted by digital innovation and exports to over 100 countries.
Adaptive Legal Framework
The issue is technology moves at such a fast pace that courts have to interpret IPR legislation in a purposive, progressive way so as to strike a balance between the creators’ fair remuneration and the investors’ desire for predictable protections and the public’s access to culture. The media and entertainment industry is in its best health when the legal system has cleverly balanced the creative spirit with the proprietary right.
Global Potential
Perfecting this balance will help India move up from being just a content consumer to becoming a power player that not only sets the rules but also governs the global entertainment world by taking advantage of its talent, technology and cultural exports.
Referencer(S):
[1] Student at National Law University Delhi (LL.M. IPR 2025-26)
[2] WIPO Intellectual Property Handbook para 2.3.
[3] P Narayanan Intellectual Property Law 422–425.
[4] Copyright Act 1957, s 13.
[5] R G Anand v Delux Films AIR 1978 SC 1613.
[6] Indian Performing Right Society Ltd v Eastern Indian Motion Pictures Association AIR 1977 SC 1443.
[7] Copyright Act 1957, ss 57, 38B.
[8] Campbell v Acuff-Rose Music Inc 510 US 569 (1994).
[9] Directive 2001/29/EC of the European Parliament and of the Council (InfoSoc Directive), art 5(3)(d), (k).
[10] Trade Marks Act 1999, ss 2(1)(zb), 29.
[11] (2016) 2 SCC 521.
[12] 2004 (29) PTC 1 (Del)
[13] Haelan Laboratories Inc v Topps Chewing Gum Inc 202 F 2d 866 (2d Cir 1953).
[14] Regulation (EU) 2016/679 (General Data Protection Regulation).
[15] Attorney General v Blake [2001] 1 AC 268
[16] Taj Television Ltd v Rajan Mandal 2003 (27) PTC 88 (Del).
[17] Digital Millennium Copyright Act 1998, 17 USC § 512.
[18] Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021.
[19] Shreya Singhal v Union of India (2015) 5 SCC 1.
[20] Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021.
