Dancing to a New Tune: Permanent Injunction by the Madras HC on Staging Dance Ballet

Most of you may have read the recent report in The Hindu about the Madras High Court’s permanent injunction in the Dance Ballet case. My apologies for the delay in covering this… the reason for my tardiness is that I wasn’t able to get my hands on a copy of the judgment – I still haven’t gotten it, but am basing the below legal analysis on the facts that I could gather from various sources, particularly the report in The Hindu. I’ll follow up with a detailed analysis of the actual judgment as soon as possible.

First, for those of you who missed the news reports, here’s a brief account of the facts:

The dance ballet titled “Jaya Jaya Devi” staged for the first time in 1994, was a productions of the Defendant – Cleveland Cultural Alliance (CCA). With music composed by Lalgudi G. Jayaraman (renowned Carnatic musician), story written by Ms. Sujatha Vijayaraghavan (a popular writer) and choreography by Shrimathi Radha (collectively, the Plaintiffs) the ballet received glowing reviews.

The ballet was staged by the Plaintiffs in a number of centers in the US and India. At some point, the defendants sought an assignment of the copyright in the ballet. However, as no agreement could be reached between the Plaintiffs and Defendant, the copyright in the ballet continued to vest in the Plaintiffs.

In December 2007, the Defendants publicized its plans to revive the dance ballet and (you guessed it!) the Plaintiffs’ consent was not taken; hence the suit before the Madras HC seeking first a preliminary and then a permanent injunction. (I can’t guarantee that this was the exact procedural history, but this is what I’m guessing from the news reports).

The Madras HC granted the interim stay in December 2007 and made it permanent late last month (February 26). According to the report in the Hindu,

Justice V. Ramasubramanian said [that] a careful perusal of all documents filed by both sides established that the first defendant engaged the plaintiffs for creating and composing the operatic ballet in 1994; that the cultural organisation paid a honorarium and also reimbursed the expenses incurred by the plaintiffs for traveling and in staging the performances and that both the parties did not reduce into writing the terms and conditions, subject to which, they came together for the ballet’s production.

But, there was no written agreement between the parties to spell out their mutual rights and obligations. The court said it was clear from the language of section 17 of the Copyright Act that as a matter of general rule, the author of a work was the first owner of the copyright therein. The Judge [further] said [that] the plaintiffs, who were authors, had a prima facie case to show that they were the owners of the copyrights therein. The first defendant could not establish that the work was produced in the course of the employment of plaintiffs with them.

Coming to balance of convenience, the Judge said that the copyright owner was entitled to all remedies by way of injunction, damages and accounts.

It seems to me that the court was required to address a number of relevant issues. First, to state what might seem obvious to some of us, the ballet would fall best into the category of a “dramatic work.” Section 2(h) of the Indian Copyright Act defines “dramatic work” as including “any piece of recitation, choreographic work or entertainment in a dumb show, the scenic arrangement or acting, form of which is fixed in writing or otherwise but does not include a cinematograph film.”

Considering my inclination to be pedantic, I would love to plunge into the issue of whether or not the work was “fixed” (especially the choreography) and if it was not, whether the defendants are free to copy it. I will however refrain from getting into this discussion until such time as I get a hold of the detailed facts – which I hope will be elaborated in the decision. Till then, I will focus on the more obvious issues.

The key issue in the case seems to be whether or not the ballet was a “work-for-hire” (terminology under US copyright law) or a work made in the “course of employment” (under Section 17 of the Indian Copyright Act).

US v. Indian Law on Works made “for Hire”

There seems to be is an interesting distinction between the US and Indian law on who the first owner of a work is. Under US law, in case of a work made “for hire,” the employer or “other person” for whom the work is prepared is the author and owner of all rights, unless the parties agree otherwise.

According to William Patry (as stated in his famous Patry Copyright Blog), “The Copyright Act [of USA] provides that copyright ownership “vests initially in the author or authors of the work.” 17 U.S.C. § 201(a). However, if the work is made “for hire,” “the employer or other person for whom the work was prepared is considered the author … and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.” 17 U.S.C. § 201(b).

Section 101 of the Copyright Act defines a “work made for hire” as “a work specially ordered or commissioned … if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire….” 17 U.S.C. § 101(2).

Under Indian law on the other hand, there is an express requirement that the work be created “in the course of employment” in order for the “employer” to be the automatic owner of the copyright of a work made (authored) by an employee. Unlike US law, under Section 17 it seems that even if the work is specifically “ordered or commissioned” by a party, the first owner of the copyright will be the creator/author of the work (unless there is an express agreement to the contrary).

In this way, the Indian law makes a clear distinction between the author and owner of a work made by an employee – while the employee will still be the “author”, the employer will be the “owner” of the work if it is proved that the work was made “in the course of employment.”

The US law on the other hand appears to make the employer the author as well as the owner of all works that are made “for hire.” (See language in bold quoted from the Patry Copyright Blog above)

While both Indian and US laws give ownership to the employer absent an “agreement to the contrary” [Indian Law Section 17 Proviso (c)] (US statutory language: “unless expressly agreed otherwise” [17 USC § 201(b)]), Indian law requires that the work be made “in the course of employment.” Under US law, it appears that it may be adequate to prove that the work was created for an “employer or other person.”

It is thus no wonder that the court found the authors of the ballet to also be the owners; there was no employer-employee relationship and there was no agreement in writing. The judgment appears to closely follow the Indian copyright law as well as an old Assam HC decision. In Lama Prasad v. Nabahash (1967), the High Court held that the right in a drama by an author written for a society, is, in the absence of a clear agreement to the contrary, vests in the author. Further, under Section 19 of the Indian Copyright Act, all assignments of copyright must be in writing.

I am totally intrigued by the Indian law which maintains the distinction between “owner” and “author” of a copyright. What springs into my mind is: how necessary this distinction is to enforce the author’s moral rights. Readers would recall our series of posts on moral rights. In this context, under the US law, it seems that there are no moral rights and therefore no need to maintain a distinction between authorship and the ownership of works created by an employee.

Other random thoughts on the case: If the Defendant are based in Cleveland (as their name suggests) and they intend to re-stage in the US, would it help the plaintiffs to get a favorable decision from an Indian Court? Wouldn’t US copyright laws (i.e. the “Work for Hire” standard) apply if the plaintiffs want to prevent staging of the ballet in the US? If yes, would the decision under the US Copyright laws be different? [I think it would!] More details on the interesting case soon… I am reproducing the relevant portions of the Section 17 for our readers benefit. Comments welcome 

Section 17 and relevant Provisos state as follows:

17. First owner of copyright.-Subject to the provisions of this Act, the author of a work shall be the first owner of the copyright therein

Provided that-
(a) in the case of a literary, dramatic or artistic work made by the author in the course of his employment by the proprietor of a newspaper, magazine or similar periodical under a contract of service or apprenticeship, for the purpose of publication in a newspaper, magazine or similar periodical, the said proprietor shall, in the absence of any agreement to the contrary, be the first owner of the copyright in the work in so far as the copyright relates to the publication of the work in any newspaper, magazine or similar periodical, or to the reproduction of the work for the purpose of its being so published, but in all other respects the author shall be the first owner of the copyright in the work;

(b) subject to the provisions of clause (a), in the case of a photograph taken, or a painting or portrait drawn, or an engraving or a cinematograph film made, for valuable consideration at the instance of any person, such person shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein;

(c) in the case of a work made in the course of the author s employment under a contract of service or apprenticeship, to which clause (a) or clause (b) does not apply, the employer shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein;

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