Ayyappanum Koshiyum Remake Rights: Note on a Producer’s Right in ‘Dubbing’ a ‘Remade’ Film

From a purely viewer’s standpoint, the author of the original Malayalam film, Ayyappanum Koshiyum, is the rightful owner of the Hindi-dubbed version of ‘Bheemla Nayak,’ as well as the Telegu remake of the same. Nonetheless, we cannot rely solely on morals, as the Delhi High Court recently, in ‘JA Entertainment Pvt Ltd. v. MS Sithara Entertainment & Ors. (CS(COMM.)191/2022 Order dated 11.07.2022) established the validity of the right of ownership of the copyright of a film producer who was assigned the remake rights for a Telugu version of a Malayalam film; in a suit filed by another producer, an assignee. The court overturned the injunction that prevented the release of the Hindi-dubbed film version.[1]

Analyzing the Delhi High Court’s judgement, it is clear that there is a very fine line between who owns the rights to the dubbed version of the remake picture. To begin, the right to dub was examined in 2018 in the case of Thiagarajan Kumararaja v. M/s Capital Film Works and Anr[2], which determined that the producer of a film has the right to dub that film in almost any other language, subject to any provision to the contrary. This is the first time the court has explicitly expounded on the producer’s rights as the script creator in the context of film dubbing. Furthermore, it was stated that dubbing is not the same as remaking and that dubbing is well within the prerogatives of the film’s producer.

The backstory of the case

In this case, ‘Ayyappanum Koshiyum,’ a Malayalam film starring Prithviraj and Late Brij Menon, was released on 07.02.2020 and was commercially successful. Plaintiff planned to recreate the picture in Hindi, and because it was a commercially attractive undertaking, many producers were eager to participate. Defendant No. 1 was awarded whole and unfettered rights to the story of the Malayalam film to remake it in Telugu. Defendant No. 1 remade the Malayalam film in Telugu with an entirely new and distinct cast, lyrics, script, dialogues, and so on.

The problem arose when, following that, on 16.04.2021, Defendant No. 1 executed a Film Assignment Agreement in which Defendant No. 1 assigned the Dubbing Rights in the suit film in Hindi and North Indian languages to Defendant No. 2, and the Hindi dubbed version of the suit film was set to release on 31.03.2022.

While it was still in the pre-production stage, the plaintiff viewed a Hindi-dubbed Telugu film teaser of the film with the working title “Bheemla Nayak”, starring Pawan Kalyan and produced by Defendant No.1, on YouTube. The plaintiff saw this as a willful violation of its rights. The dispute eventually resulted in the plaintiff filing a lawsuit seeking a permanent injunction to prevent the Hindi dubbed version of the Telugu remake of the film from being released.

Understanding the basic rights in a film

Section 2(d)(v) defines ‘author’ as the producer of a cinematograph film. Section 2(f) defines ‘cinematograph film’ as any work of visual recording that incorporates a sound recording in addition to the visual recording. Concerning a cinematograph film, a ‘producer’ is a person who takes the initiative and responsibility for creating the work in Section 2(uu). Section 17 of the Act states that the author of a work is the initial owner of the copyright to that work. As a result, the producer of a cinematograph film is the author, and the author is the initial owner of the copyright. Section 14 encompasses the exclusive copyrights, which include the right to communicate the film to the public in the case of a cinematograph film.

A collaborative reading of the above sections demonstrates that a work’s author is the copyright’s first owner. In the case of a cinematograph film, the producer is the author and thus the first owner of the copyright and therefore would get all the rights bestowed under Section 14 (d)(iii) of the Act, including the right to dub.

Providing a glimpse of Section 14 (d)(iii) and further exploring its meaning from Section 2(ff), which has broadened the right to communicate the film to the public in such a way that this particular case is a clear illustration of clever use of the rights conferred on the producer:

“2. Interpretation. — In this Act, unless the context otherwise requires, —

(ff) “communication to the public” means making any work or performance available for being seen or heard or otherwise enjoyed by the public directly or by any means of display or diffusion other than by issuing physical copies of it, whether simultaneously or at places and times are chosen individually, regardless of whether any member of the public sees, hears or otherwise enjoys the work or performance so made available.”

The language “otherwise enjoyed” has been extensively examined, broadening how communication with the public must be made in terms of enjoyment, enabling dubbing to fall well within the purview of the terminology communicating to the public.

Finally, the following questions must be addressed:

1. Does the plaintiff’s dubbing of the Telegu remake to Hindi constitute copyright infringement under the Copyright Act?
2. Is it necessary for any remake/dub of the film to be approved by both the author of the script and the producer/author of the cinematograph film?

So far, what has been decided?

The Delhi High Court has approved the release of the Hindi-dubbed version of the Telegu film “Bheemla Nayak.” It was determined that while the plaintiff has the right to remake the Malayalam film in Hindi as well as dub the same or the New Film in any language, Defendant No. 1 has admittedly dubbed the remade Telugu film (suit film) in Hindi, which does not infringe the plaintiff’s right under Section 51 of the Act. Alternatively, if Defendant No. 1 had recreated or dubbed the Malayalam film in Hindi, Plaintiff may have had a prima facie case for infringement.

The test of infringement in the current context, as immaculately presented in the instant case, is not the degree of similarity between the Telugu film dubbed in Hindi and the Malayalam film dubbed in Hindi, but whether dubbing the Telugu film in Hindi to communicate it to the public infringes on any exclusive right of the plaintiff, which is not the case here. As a result, the Hindi dubbing of the Telegu version does not constitute an infringement of the plaintiff’s rights.

The Thiagarajan case answers the second question of whether the right to dub/remake requires the approval of both the script author and the cinematograph film, i.e., the producer. A remake of the film or its variants that are substantially similar to the original cinematograph film is not covered by the right to copy a film granted by Section 14(d)(i) of the 1957 Act. According to the case, while the right to duplicate a film includes the ability to replicate the film, it does not have the right to remake or create several versions of the same film.

Similarly, as previously stated, the right to remake or make different versions of the film does not fall within the definition of “communicating the film to the public,” as this would require alterations to the original script, although without the appellant’s approval. Since then, the author of the script has retained ownership of the script’s copyright.

Conclusion

It is reasonable to suppose that a remake of a film in a particular language is unique from the original movie from which it obtained remake rights through an assignment, thereby becoming an independent film after it is completed. Once the rights to remake a movie in a specific language are granted, the right to dub the remade movie cannot be challenged, and the assignor charging infringement of copyright may filed by the assignor charging infringement of copyright. In laypeople’s terms, the copyright of such remade film will be with its producer and is open to being exploited by him, just as an original version, to be dubbed in any other language.

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[1] Delhi HC removes stay order on Hindi dub of ‘Bheemla Nayak’. https://www.buzinessbytes.com/National/delhi-hc-removes-stay-order-on-hindi-dub-of-bheemla-nayak/cid8022549.htm

[2] Thiagarajan Kumararaja v. M/s Capital Film Works and Anr, https://indiankanoon.org/doc/68611937/