Protection of Film Titles under Indian Law
The Entertainment industry saw a booming increase in its accessibility with the emergence of digital era and during COVID-19 pandemic. With the large amount of content being released every year, the most challenging phase that the entertainment industry goes through is naming a film. When the films are made, their titles are the one that identifies them which makes them even more integral. From the marketing perspective, film titles catch the audience’s attention and set the stage and tone for the film. Some of the popular film titles include, Sholay, Dilwale Dulhaniya Le Jayenge (DDLJ), etc. When it comes to the protection of film titles, the important questions that arise are, “what are the modes of protection for these film titles?” and “are all the film titles subject to be granted protection under Indian Law?”
Registration with industry associations
At the outset, some associations in the industry, for example, Indian Motion Picture Producers’ Association (IMPPA), Film Makers Combine (FMC), Producers Guild of India (GUILD), Western India Film Producers’ Association (WIFPA), Cine & TV Artistes Association (CINTA), Film Federation of India (FFI) and Federation of Western India Cine Employees (FWICE), Indian Film and TV Producers Council (IFTPC) [previously known as the Association of Motion Pictures and Television Program Producers (AMPTPP)], Film and Television Producers’ Guild of India are some of the industry associations that are responsible for safeguarding commercial interests of films that are produced in India. In the Indian Film Industry, these associations are responsible for registering the film titles in the Indian entertainment industry and it is customary to “register” film titles with such associations.. Before registering a certain film title, these associations verify whether there are other film titles which are similar or deceptively similar to the one in question, registered in other association. These registrations only ensure that there is a prior use or adoption of the film title and this registration is not subject to legal proceedings in the court. However, no legal rights are granted to film titles by these associations.
Protection of Film Titles under Indian law
Film Titles, unlike, film scripts are not entitled to be protected under Copyright Act, 1957 as amended from time to time (“Act”). In the case of Krishika Lulla v Shyam Vithalrao Devkatta and Ors.[1], the court stated that, “in the first place a title does not qualify for being described as “work”.” It is observed by the court that the title in itself is incomplete. Since the title in question cannot be deemed to be a "literary work," no copyright can be claimed to exist in it under Section 13 Act, and no basis for a criminal charge of infringement can be established on this basis. It represents the film which is a “work” is protectable under copyright law. However, this does not mean that there is no protection available to safeguard the film titles from getting exploited. The trademark law could be used as a safety net for the film titles, provided that the film title is distinctive enough.
Before getting into the protection that is available for the film titles, it is important to determine why it is necessary to protect the film titles. In order to understand the necessity of protecting the film titles, the case of Sholay Media and Entertainment v Parag M. Sanghavi[2] is a significant one. In the present case, the film title in question was “Ram Gopal Verma Ki Sholay” and a trademark and copyright infringement suit was filed in the Delhi High Court. The popular film title of the 1975 released renowned film “Sholay” was used to capitalize on the established goodwill and fame of the title “Sholay”. Here, the film title “Sholay” was used by the defendants in their film title to be portrayed as a remake of Sholay which infers that the defendants were intending to use the reputation of the “Sholay” for their own film.. It was observed that the mark ‘Sholay’ (although not registered under Class 41 but under Class 16 and Class 31). However, “Sholay” earned tremendous marketable commodity and apart from royalties from traditional modes of exploitation, such as, satellite, television, cable and TV broadcasts, etc. and it was a violation of plaintiff exclusive moral rights of the copyright. The court also cited the need to file these trademarks which was with a view to protect the name and prevent its misappropriation by infringers. Therefore, the court restrained the defendants from using the word “Sholay” in their film title since, the film “Sholay” has achieved a status of “cult classic.”
As already discussed above, not all film titles are entitled to be protected under trademark law, like the film title “Sholay”. In the case of Kanungo Media (P) Ltd. V RGV Film Factory[3], the court states that whether a film title can be given trademark protection would depend upon whether they have acquired second meanings and distinctiveness. The court has provided with the factors based on which it can be inferred if film title has acquired a secondary meaning and is entitled to protection. These relevant factors are as follows-
“(1) the length and continuity of the use;
(2) the extent of advertising and promotion and the amount of money spent; and
(3) the sales figures on purchases or admissions and the number of people who bought or viewed the work; and
(4) the closeness of the geographical and product markets.”
These factors are somewhat criteria provided by the Indian courts to ascertain which category of film titles are protectable and which category of film titles are not. The protection of film titles is dependent upon their acquired distinctiveness and secondary meaning.
To summarize
Film titles are used to distinguish films and it gives an identification to films. However, there is no copyright protection available for these titles. However, the trademark law recognizes the legal protection of the film titles. Registration of these trademarks allows the owner of the exclusive rights to use titles as marks as goods and services or source to identify the goods or services and restraining others from using similar or deceptively similar marks/film titles.