Guest Post: The Expanding Scope of Performers’ Rights

Shashank Mangal brings us his 2nd post in our fellowship series. This post questions the scope of performers’ rights and raises some interesting questions regarding the same. This is Shashank’s 2nd post in our fellowship series. You can view his first post here.

The Expanding Scope of Performers’ Rights

The Copyright Act provides for an inclusive or illustrative definition of “performer” as it says that – “performer” includes an actor, singer, musician, dancer, acrobat, juggler, conjurer, snake charmer, a person delivering a lecture or any other person who makes a performance.

The last leg of this definition requires us to go to the definition of performance, which has been defined as – “performance, in relation to performer’s right, means any visual or acoustic presentation made alive by one or more performers”.

Usually by performances, we think of Sonu Nigam singing a song at Filmfare Awards or Prabhu Deva showing his dancing skills at a ‘Dancing Fest’. But are these or similar rights the be all and end all of performers’ rights?

I propose to raise certain emerging issues or the issues that may arise in future regarding performers’ rights. Firstly, let us apply our minds by analysing whether the following situations are performances:

1. When we watch an IPL match, there are a few players who have developed their own style of celebrating wickets or runs, for example Darren Sammy, Chris Gayle etc. Can they claim a performance right over that?
2. Similarly, in an IPL match, do the cheerleaders also get performance rights?
3. What about the way in which the fans of a particular football club cheer their team’s success or the manoeuvres of their team’s players?
4. How about the way in which cricket umpire Billy Bowden used to give signal for fours, sixes and wicket?
5. The particular pose which Usain Bolt gives on winning the race.
6. The peculiar manner in which Brett Lee used to celebrate his wickets and the way Shikhar Dhawan caresses his moustaches on hitting a century.
7. Or Navjot Singh Siddhu’s prose based style of commentary.

Though it can’t be said conclusively whether these are granted protection under the Act or not, I would think the statue treats them as performances. Moreover, an attempt at assessing the viability or requirement of protecting such performances against infringement has been made hereinbelow.

We must look at the statutory provisions regarding the protection against infringement of the performers’ right produced hereinabove, to answer the ‘what difference does that make’ theory. We must look into the rights or liabilities such recognition would give rise to, meaning thereby that we must refer to the provisions of Chapter 8 of the Act from section 38 onwards till section 39A.

So far as the Billy Bowden’s style of umpiring; celebration upon wickets and runs, style of commentary in cricket; celebration by athletes on winning their events; and manner of cheering by fans of a particular football club is concerned, there is no protection against imitation (reproduction) thereof under the performer’s rights provision in Indian Copyright Act.

At this juncture, if in a cricket match in India, an umpire Mr. Copy Singh copies his style of umpiring throughout the match, the only solace to an angry Mr. Bowden would be Section 38B(b) of the Act which allows a performer “to restrain or claim damages in respect of any distortion, mutilation or other modification ofbis performance that would be prejudicial to his reputation.” But even for availing that, he shall have to prove that the performance by Mr. Copy Singh has been prejudicial to his reputation, which might not be that easy.

Importance of such rights also is realized in situations such as (for example) when EA sports makes a game of cricket and where Brett Lee is shown as celebrating in the similar manner as he does in real cricket. Doesn’t it add to the popularity of the game in the gaming world? That means EA Sports is deriving popularity (which gets converted into the form of revenues by boom in sales) from imitation of other person’s style without being liable for sharing any part of their profits with the performer.

Also, another question for consideration herein is that if someone makes virtual world identity in a game of a performer, does the IP regime in India entitle the performer to any share of the pie?

It would be correct to call these situations ad-hoc performances or non-professional performances. And in my opinion, these situations are a subject matter of performers’ right as they fit into the statutory definition of performance and performers produced hereinabove.

Now, there is more for the discussion. If a cricketer introduces a new type of shot or if a bowler discovers a new type of delivery – can it be protected by IP? It is not a work in which copyright subsists under S. 13, so let us switch to related rights. If it is protected by performer’s rights, then it can lead to absurd results. For example- If a player distorts scoop shot so as to ridicule the shot, can the person who discovered it has a right to sue him under section 38B(b) of the Act.

Can there be a moral rights issue when commentators refer to the ‘doosra’ without mentioning Muralidharan, or to ‘paddle sweep’ without mentioning Sachin Tendulkar, or to helicopter shot without mentioning MS Dhoni (or should it be Santosh Lal?) or to scoop shot without mentioning Dilshan (or should it be Douglas Marillier?)

If indeed such type of litigation is to come up in future under the copyright act, the first and primary defence would be to challenge the plaintiff’s attribution of the shot or the delivery to him.

These issues may seem to be a trifle now but soon enough there might be a requirement of a legal framework to deal with these issues.