Recently, the Madras High Court in the case of Kajal Aggarwal vs The Managing Director gave a decision based on the infringement of Cinematographic rights of an artist under a contract which is not enforced under Copyright Act, 1957 in India. The Court held that V.V.D.& Sons Pvt. Ltd were the first owner of an advertisement featuring actor Kajal Agarwal and rejected the actor’s plea that the company should be restricted to use the commercial only for one year.
- Kajal Aggarwal (hereinafter referred to as ‘the Plaintiff’) is a renowned actress in India.
- V.V.D. & Sons Pvt. Ltd (hereinafter referred to as ‘the Defendant’) approached the Plaintiffs to support their products to be marketed.
- The terms of promotional participation were finalized after mutual negotiations between the parties. The Plaintiff agreed to subject herself to be available to shoot the required materials to use the same for the advertisements of the Defendant.
- The parties entered into the agreement on December 29, 2008.
- The Plaintiff alleged that the Defendant was to use the advert for only a year but had done so beyond that period from 2008. Aggrieved by the act, the Plaintiff filed a suit before the Madras High Court (hereinafter referred to as ‘the Court’)
- Whether the Defendant was restricted to use the profile of the Plaintiff only till the period authorized in the agreement?
- Whether the Defendant exceeded the commitment and violated the condition in advertising their products with the appearance of the Plaintiff's profile to cause prejudice?
- Whether or not the Defendant is the owner/author of the copyright in the commercial (cinematographic) film as per Section 17 of the Copyright Act, 1957?
- Is the term of the copyright in the commercial (cinematography) film, 60 years as stipulated under Section 26 of the Copyright Act?
- It was submitted that the Plaintiff completed the shooting and photo sessions for two full days.
- However, it was alleged that the Defendant did not keep up their commitment and violated the terms on which the Plaintiff agreed to extend her profile for the promotion of their business.
- It was also alleged that all the terms, which were agreed upon, were not incorporated with the full text in the agreement prepared and brought with the signature of the Defendant to subscribe the signature of the Plaintiff.
- It was submitted that the Plaintiff made specific protest to incorporate all the agreed terms.
- It was further alleged that the Defendant had included by hand written words in clause 2 of the terms of agreement to restrict the advertisements to the geographical limits of Tamil Nadu and Andhra Pradesh only.
- It was promised by the Defendant to prepare and send the proper text with agreed conditions, but, they failed to do so.
- It was contended that the Defendant started using the advertisement materials with Plaintiff’s profiles for their product’s marketing even before furnishing the corrected agreement and the subscription of the signatures on either side and on coming to know the same, the Plaintiff had protested, and the Defendant promised to rectify the issue.
- It is contended that despite knowing, the Defendant continued to exploit the popularity of the Plaintiff through their advertisement materials without giving regards to the terms of agreement agreed to between the parties.
- It denied breaching the agreement between him and the Plaintiff regarding the promotion of the products.
- It was alleged that when the ad film for coconut oil was made, the Plaintiff was only an ordinary model and she became an actor in films later.
- It was submitted that the Plaintiff was paid remuneration a of INR 3,00,000 (USD 4292) for the ad film. It is denied that any geographical limit was agreed upon for advertising the product using the Plaintiff’s name, image, etc.
- It also denied promising to prepare and send a revised text of the agreement.
- It submitted that it had been using the advertisement material in accordance with the agreement and not in violation to the terms of the agreement.
- It also submitted that it holds copyright over the ad film and all rights in the said film vested with the Defendant. The Plaintiff has no right over the same, since she was paid the sum demanded by her for acting in the said ad film.
- The Court noted that with respect to an Ad film for promoting the products of the Defendant, the Plaintiff and the Defendant entered into an agreement on December 29, 2008. Also, it is not disputed also that the Plaintiff has been paid a sum of INR 3,00,000 (USD 4292) for completing the shooting of the Ad film.
- Regarding the Defendant being the first owner of the copyright, the Court held that ‘the Defendant being the employer and having utilized the services of the Plaintiff for promoting their products through the ad film, the Defendant shall be the first owner of the copyright thereof in the absence of any agreement to the contrary.’
- On the question of the period for which the advert could be used, the Court held that ‘A person who becomes the first owner of the copyright for his entire work, has been conferred with a statutory right for a period of 60 years over the cinematograph of the film. This statutory right cannot be taken away by a performer in the cinematograph film by virtue of an agreement. Hence, we hold that the Defendants entitled to exploit the work for the entire term prescribed under Section 26 of the Copyright Act and is not restricted for a period of one year by the agreement.’
- Further rejecting the argument of compensation for using the promotional material beyond the period of one year, the Court held that ‘there are absolutely no materials for this Court to award compensation to the Plaintiff in this case. Once she consented to incorporate her performance as an action in the film, she cannot stop the Defendant from enjoying the right of producer.’